McDonald v. . McBryde

Supreme Court of North Carolina

McDonald v. . McBryde

23 S.E. 103, 117 N.C. 125

CourtSupreme Court of North Carolina

DecidedSeptember 5, 1895

StatusPublished

Cited by6 cases

This text of 23 S.E. 103 (McDonald v. . McBryde) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McDonald v. . McBryde, 23 S.E. 103, 117 N.C. 125 (N.C. 1895).

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Opinion

*128 Avery, J. :

We concur witb the Judge below in the opinion that the bondsmen of the defendant who has consented to a judgment against himself and them, in claim and delivery, for the recovery of certain property, and if recovery thereof could not be had, then for its value, are not entitled to come before the clerk after judgment and procure an order making them parties defendant and ask to have the judgment vacated, and for an injunction. The bondsmen did not offer.to interplead and claim the property in the manner prescribed by law (Oode, Sec. 331) and the judgment is none the less conclusive upon the sureties because taken by consent. Council v. Averett, 90 N. C., 168. It can now be set aside only by civil action and not by a motion in the cause. Stump v. Long, 84 N. C., 616. It is no ground of complaint on the part of the sureties that the defendant consented to judgment, if such was the fact, before the maturity of the debt, such an agreement not being necessarily fraudulent. Were it admitted that there was collusion or fraud affecting the rights of the sureties, such as would afford proper ground for impeaching the judgment (which we are not to be understood as conceding) their remedy would be by a new action and not by motion in the cause. Smith v. Fort, 105 N. C., 446. No error and the judgment is affirmed.

Affirmed.

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*128 Avery, J. :

We concur witb the Judge below in the opinion that the bondsmen of the defendant who has consented to a judgment against himself and them, in claim and delivery, for the recovery of certain property, and if recovery thereof could not be had, then for its value, are not entitled to come before the clerk after judgment and procure an order making them parties defendant and ask to have the judgment vacated, and for an injunction. The bondsmen did not offer.to interplead and claim the property in the manner prescribed by law (Oode, Sec. 331) and the judgment is none the less conclusive upon the sureties because taken by consent. Council v. Averett, 90 N. C., 168. It can now be set aside only by civil action and not by a motion in the cause. Stump v. Long, 84 N. C., 616. It is no ground of complaint on the part of the sureties that the defendant consented to judgment, if such was the fact, before the maturity of the debt, such an agreement not being necessarily fraudulent. Were it admitted that there was collusion or fraud affecting the rights of the sureties, such as would afford proper ground for impeaching the judgment (which we are not to be understood as conceding) their remedy would be by a new action and not by motion in the cause. Smith v. Fort, 105 N. C., 446. No error and the judgment is affirmed.

Affirmed.

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Bluebook (online)

23 S.E. 103, 117 N.C. 125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdonald-v-mcbryde-nc-1895.

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