Shackelford v. . Staton

23 S.E. 101, 117 N.C. 73

• Court: Supreme Court of North Carolina
• Decided: September 5, 1895
• Status: Published

Opinion

Montgomery, J.:

It appears from the complaint that the plaintiff, Kate S. Shackelford, then & feme sole, on the 13th of April, 1885, at the Spring Term of EdgecoMbe Superior Court, recovered a jirdgmentfor $536.89 against S. E. and B. P. Jenldns and John Killebrew; that the defendant in this action was Clerk of the Superior Court at the time of the rendition of the judgment and continued in the office until December, 1886, when his term expired; that the defendant docketed the judgment within the time prescribed by law, but failed to cross-index the same under the name of John Killebrew, one of the defendants in the judgment, as he should have done under section 433 of The Gode\ that Killebrew was the owner of real estate more than sufficient in value to have discharged the judgment, after the allotment to him of his homestead, at the time when the judgment was docketed, and continued to own it until it was sold for the benefit of other creditors than the judgment' creditor on the 1st of September, 1890, under a deed of trust executed by him to the trustee on the 25th of February, 1889; and that after this sale Killebrew became entirely insolvent and has continued so; that the other judgment debtors were insolvent when the judgment was rendered and have remained so, that by failure of the defendant to properly index the said judgment'and the subsequent conveyance by deed of trust by Killebrew and sale under the trust, the plaintiff lost the amount of her judgment. The complaint does not set forth the date of the marriage of the plaintiff. The defendant in his answer 'admits the date and the amount of the judgment and his failure to index it as required by law, and he admits the ignorance of the plaintiff as to his failure, the expiration of his term of office in December, 1886, the date of the execution of the deed of trust by Killebrew, and the sale of Killebrew’s land under the trust. The defendant then pleads the statute of limitations. The summons shows that the action was commenced on the 3rd of April, 1893.

TJpon these facts alleged and admitted, the court below, upon the pleadings, was of the opinion that the action was barred by the statute of limitations, and gave judgment against the plaintiff. It is insisted for the plaintiff in this Court that the statute of limitations did not begin to run until some consequential damage had occurred to the plaintiff’s rights. If this proposition should be held to be correct, we see no reason why the time at which this consequential damage occurred should not be fixed when the deed of trust was made, as well as when the land was sold under the deed. The execution of the deed of trust itself was injurious in many ways to the property rights of the plaintiff, and if-that act should be fixed as the time at which the statute should begin to run, then this action is barred, as will hereafter appear. It is also contended for the plaintiff that section 155 (2) of The Code, the three years’ statute — “An action upon a liability created by statute other than a penalty of forfeiture, unless some other time be mentioned in the statute creating it” — does not apply to the facts of this case, but that section 158 (10 years) does. We are of the opinion 'that section 155 (2) is the statute applicable to the facts 'in this case, for this action is founded upon a liability created by statute (Section 433 of The Code) and there is no other time mentioned in this statute fixing a bar to a cause of action accruing under it. We are of the opinion further that the liability of the defendant was a continuous one, beginning from the day on which he failed to properly index the judgment (it was docketed within the time required by law), and continuing until he ceased to be clerk of the court in December, 1886 ; and that therefore the plaintiff could have brought her action on any day in the intervening time, or within three years after he ceased to be clerk, and not later. This case is distinguishable from that of Hughes v. Newsome, 86 N. C., 424. There, the defendant Sheriff, on an order directed to him by the cleric, in a suit for the recovery of personal property (horses), to take the property from the defendant and deliver it to the plaintiff, seized the property but returned the same to the defendant, upon the defendant’s giving him an undertaking, which was not only not according to the requirements of the statute in such cases but was absolutely void. There the Court held that this default of the sheriff was absolute and complete; that there was nothing else to be done by the sheriff; that the right of the plaintiff to bring his suit against him at once accrued, and that the plaintiff could recover full damage if he should make out his case. In the case before us it was the duty of the defendant clerk, every day during his continuance in office while the judgment was a lien, to have had it. properly docketed and indexed. It is to be observed that this action is in the nature of tort, and is prosecuted against the clerk alone. If it had been brought on the official bond of the defendant, Section 154 (1) of The Code, the six year statute, would apply. There is no error.

No Error.