Koehring Co. v. Seacrest Marine Corp.

224 S.E.2d 654, 29 N.C. App. 498, 1976 N.C. App. LEXIS 2549

• Court: Court of Appeals of North Carolina
• Decided: May 19, 1976
• Docket: No. 7610SC22
• Status: Published

Opinion

BROCK, Chief Judge.

Since notice of appeal by The Home Indemnity Company was given after 1 July 1975, its appeal is governed by the North Carolina Rules of Appellate Procedure.

Two exceptions appear in the record on appeal:

“At the close of the evidence, Mr. Hassell Objected on behalf of Home Indemnity Company to Home Indemnity Company being a party to this matter.

Exception No. 1.”

“To the Judgment of the Court entered September 23, 1975, Home Indemnity Company Objects, and gives Notice of Appeal.

Exception No. 2.”

By assignments of error Nos. 4, 5, and 6 The Home Indemnity Company undertakes to attack certain of the findings of fact and conclusions of law of the trial court. There are no exceptions in the record on appeal to any findings of fact or conclusion of law. The pertinent portion of App. R 10 (b) (2) provides: “A separate exception shall be set out to the making or omission of each finding of fact or conclusion of law which is to be assigned as error.” The above purported assignments of error are not supported by exceptions and will not be considered on appeal.

The Home Indemnity Company’s assignments of error Nos. 1, 2, and 3 constitute three arguments based upon its exception to the entry of the judgment on 23 September 1975.

First, it argues that judgment should not have been entered against it because it was not a party to the action and the court did not have jurisdiction over it. The Home Indemnity Company voluntarily made itseslf a party to the action and submitted itself to the jurisdiction of the court when it executed its bond to stay execution of plaintiff’s judgment against defendant. It was served with notice of the motion for judgment on its stay bond, and it participated in the hearing by offering evidence. This argument is without merit.

Second and third, it argues that judgment should not have been entered against it on its stay bond prior to execution against the defendant. The stay bond executed by The Home Indemnity Company was for the explicit purpose of stopping execution against defendant on plaintiff’s judgment. The bond specifically provides that The Home Indemnity Company guarantees that defendant “will pay the amount directed to be paid by the judgment” in the event “the appeal is dismissed.” This constitutes a guarantee of payment of the judgment, not a guarantee of payment of such amount as execution against the defendant does not produce. The surety, if it wishes, can take an assignment of plaintiff’s judgment after payment thereof and then issue execution against defendant. Having elected to deprive the judgment creditor of the opportunity of enforcing its claim by voluntarily, and presumably for a fee, executing the supersedeas bond, The Home Indemnity Company cannot now with propriety complain if it is required to live up to the terms of its undertaking. This argument is without merit.

The findings of fact by the trial court support its conclusions of law, and the findings and conclusions support the judgment entered.

Affirmed.

Judges Hedrick and Clark concur.