Stewart v. . Parker

35 S.E.2d 615, 225 N.C. 551, 1945 N.C. LEXIS 356

• Court: Supreme Court of North Carolina
• Decided: October 31, 1945
• Status: Published

Opinion

Schenck, J.

The first question posed for our determination is the one which arises from the demurrer ore tenus filed by the defendant in this Court, namely, Does the complaint in the present action state facts sufficient to constitute a cause of action? We are constrained to answer in the negative. Plaintiff in interest, the New Amsterdam Casualty Company, surety, satisfied the original plaintiff, principal, and took an assignment to it of the judgment upon which it was jointly liable with the other defendant, James D. Parker, and the judgment thereby was extinguished, 'and the cause of action alleged in the complaint in the present action being based upon sucb judgment, cannot be maintained. A surety defendant in a judgment, as was tbe plaintiff in interest in tbe judgment sued upon in tbe present case, in order to preserve tbe liens and to enforce tbe same for reimbursement, on payment of tbe judgment, must have it assigned to some third person for bis benefit; a surety wbo pays tbe principal debt, on wbicb be is bimself bound without procuring an assignment to a trustee for bis benefit thereby satisfies tbe original obligation, and can sue only as a creditor by simple contract. G. S., 1-240; Davie v. Sprinkle, 180 N. C., 580, 104 S. E., 477, and cases there cited. The demurrer ore tenus being to an alleged cause of action bottomed upon an extinguished judgment must be sustained.

Since the sustaining of tbe demurrer ore tenus upon tbe ground that tbe complaint does not state facts sufficient to constitute a cause of action, brings about a dismissal of the case, it becomes unnecessary to decide tbe other interesting questions presented on tbe record relating to tbe motion to strike certain portions of tbe complaint.

Demurrer sustained.

Stacy, O. J., took no part in tbe consideration or decision of this case.