Opinion · Supreme Court of North Carolina
Respass v. . Pender
Respass v. . Pender, 44 N.C. 78 (N.C. 1852)
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1852-12-05
- Topic
- general
Battle, J. The effect of the tostimonj- offered by the plaintiffs in the rale, was to impeach the validity of the judgment obtained by the defendant Pender, in his attachment against Rhodes, by'showing that when he issued it ho was not a creditor of Rhodes. This coidd not be done collaterally, as has been often decided; and his Honor was, therefore, fully justified in rejecting the testimony. In the case of Skinner v. Moore, 2 Dev. & Bat.
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RESPASS ET AL.v. PENDER,44 N.C. 78(1852)
HARRISON AND RESPASS ET AL., v. THOMAS E. PENDER.
Supreme Court of North Carolina
1. A judgment in attachment, like judgments at common law, cannot be collaterally impeached by evidence that the plaintiff's cause of action had not accrued at the time his attachment issued.
2. Hence, where A. sued out an attachment against B., on a claim for money paid to his use as his surety — upon a rule against A. by other judgment creditors (in attachment) of B., to show cause why the moneys raised by the sheriff's sale should not be exclusively applied to the satisfaction of their debts:Held, that evidence of the fact that the alleged payment by A. as B's surety, had not reached the hands of the creditor at the time the attachment issued, was inadmissible.
(The case ofSkinner v. Moore,19 N.C. 138, cited and approved.)
APPEAL from the judgment of his Honor,Judge Manly, made at Fall Term, 1852, of WASHINGTON Superior Court of Law, in the following case:
The defendant issued an attachment against William L. Rhodes, as an absconding debtor, on 7 November, 1851. On the 8th of the same month the plaintiffs also issued attachments against the said Rhodes for debts due them; all of which attachments were returnable to November Term, 1851, of Washington County Court; and at May Term following, judgments were obtained, upon which executions issued, and the property attached was sold, and at August Term, the sheriff brought the money, the proceeds of the sales, into court, and asked the advice and direction of the court, to make an application thereof. Returnable to August Term, the plaintiffs served a rule on the defendant to show cause why the money raised should not be applied to theirs instead of his execution. The rule was discharged in the county (79) court, and an appeal taken by plaintiffs to the Superior Court, when, at Fall Term, 1852, the plaintiffs offered to prove, in support of their rule, that the defendant was bound with Charles Latham, as surety of said Rhodes, on a note payable at the Bank of Cape Fear at Washington for $500; that on the morning of the day his attachment issued,Page 88he enclosed the amount of said note to the cashier of the bank, and deposited the letter containing the money in the postoffice at Plymouth; that the mail did not leave Plymouth until the following day; and that the defendant's attachment issued, and was levied on the property whilst the money was lying in the postoffice at Plymouth, thirty-five miles distant from the payee of the note. His Honor, the presiding judge, rejected the evidence, and discharged the rule, and the plaintiffs appealed.
E. W. Jones for plaintiffs.Heath for defendant.
BATTLE, J.
The effect of the testimony offered by the plaintiffs in the rule, was to impeach the validity of the judgment obtained by the defendant, Pender, in his attachment against Rhodes, by showing that when he issued it he was not a creditor of Rhodes. This could not be done collaterally, as has been often decided; and his Honor was, therefore, fully justified in rejecting the testimony. In the case ofSkinner v. Moore,19 N.C. 138, one of the points adjudged was, that by our attachment law, a judgment obtained upon a proceeding in an original attachment, is placed upon the same footing with a judgment rendered in a court of record, according to the course of the common law. It cannot be collaterally impeached by evidence or by plea, except by a plea denying the existence of the record; and is conclusive until it be set aside by the same court or reversed upon a writ of error or on appeal, by a superior tribunal. That case is decisive of this; and in it the reasons upon which the principle is established, are so fully and ably explained by the lateChief Justice Ruffinas to render superfluous any further comment. The judgment is affirmed.
PER CURIAM. Judgment affirmed.Cited: Bank v. Spurling,52 N.C. 398.
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