Hood Ex Rel. People's Bank v. Wilson

179 S.E. 425, 208 N.C. 120, 1935 N.C. LEXIS 336

• Court: Supreme Court of North Carolina
• Decided: April 10, 1935
• Status: Published

Opinion

CONNOR, J.

Tbe facts alleged in tbe complaint in this action are not sufficient to constitute a cause of action on wbicb tbe plaintiff is entitled to relief. For that reason, there is error in tbe judgment overruling tbe demurrer to tbe complaint. Tbe demurrer should have been sustained and tbe action dismissed. On tbe facts alleged in tbe complaint, tbe plaintiff is not entitled to an injunction against tbe defendants, or either of them.

Roth tbe plaintiff and tbe defendant J. N. Wilson are judgment creditors of tbe defendant A. G. Wilson. Neither tbe validity of tbe defendant’s judgment nor tbe regularity of tbe execution issued on said judgments, and now in tbe bands of tbe defendant Robert Pressnell, sheriff of Yancey County, are challenged by tbe plaintiff. Both judgments were duly rendered by tbe Superior Court of Yancey County, and were duly docketed in tbe office of tbe clerk of said court, and are liens on tbe real property of tbe judgment debtor, in Yancey County. Tbe judgment of tbe defendant J. N. Wilson, having been first docketed, is a prior lien on said real property. C. S., 614.

It is provided by statute that a judgment by consent may be entered at any time by tbe clerk of tbe Superior Court in wbicb tbe action is pending. C. S., 593. Such judgment need not be entered on a Monday, as is the case with other judgments wbicb tbe clerk is authorized to enter. C. S., 597 (b). Tbe statute provides that “tbe liens of all judgments rendered on tbe same Monday shall be of equal priority, and each Monday shall be held and construed, in determining tbe priority of judgment liens, as a term of court, and tbe first day thereof.” See C. S., 613. This provision does not apply to judgments by consent, wbicb were rendered, as authorized by statute, on a day other than a Monday. As to such judgments, in tbe absence of statutory provisions to tbe contrary, tbe rule, "qui prior est in tempore, prior est in jure,” applies. See Bates v. Hinsdale, 65 N. C., 424.

Tbe allegations in tbe complaint to tbe effect that because of financial conditions now prevailing throughout tbe country, a sale of tbe lands of tbe judgment debtor under an execution will not produce a sum of money sufficient to pay all tbe judgments docketed against him, but that a sale of said lands under the supervision of the court will probably produce such sum, although admitted by the demurrer, are not sufficient to constitute a cause of action on which the plaintiff is entitled to the injunction prayed for by the plaintiff. See Bolich v. Ins. Co., 202 N. C., 789, 164 S. E., 335. Nor are such allegations sufficient to support the appointment by the court of a receiver of the property of the judgment debtor.

As there is error in the judgment overruling the demurrer to the complaint, the judgment must be reversed, and the action dismissed. It is so ordered.

Reversed.