#### C. O. THOMPSON v. SCOTT DILLINGHAM and SCOTT DILLINGHAM, Inc.

(Filed 24 May, 1922.)

1. Pleadings — Debt—Judgment—Default Pinal.

A complaint alleging a money demand for a sum certain with an express promise to pay is sufficient to sustain a judgment by default final for tbe want of an answer. C. S., 595.

2. Same — Clerks of Court — Statutes—Constitutional Law.

C. S., 573, authorizing a judgment by default final for tbe want of an answer before tbe clerk of tbe court is not an unconstitutional interference witb tbe jurisdiction of tbe judge of tbe court, tbe clerk being a component part of tbe Superior Court, and tbe exercise of tbe power of tbe judge being recognized and preserved by tbe right of appeal.

3. Attachment — Bonds—Principal and Surety — Statutes.

Where judgment by default final has been rendered against tbe principal debtor and tbe surety on an attachment bond given in tbe action, in tbe form required by tbe statute, C. S., 815, to secure whatever judgment may be rendered, and the property attached has accordingly been retained by tbe debtor, the surety is concluded from asserting tbe insufficiency of tbe bond in not having another surety thereon, as tbe statute required, when tbe bond was ■ given and accepted as be bad intended, and be bad not excepted thereto.

4. Judgments — Motion to Set Aside — Proof—Attachment—Principal and Surety.

Where an attachment bond has been given and acted upon in an action for debt, and judgment by default final has been entered against tbe principal and bis surety, tbe surety proceeding- alone to set aside tbe judgment must show, by bis evidence or in some recognized way outside of tbe aver-ments of his own unsworn statement, tbe ground upon which be relies, or his motion will be denied.

5. Attachment — Principal and Surety — Bankruptcy—Receivers—Title— Liens.

Where a judgment by default final has been entered in an action against tbe same person, individually and as incorporated, for tbe same debt, and tbe corporation has been adjudicated a bankrupt within the four-months period, and after tbe judgment tbe property of tbe individual has been *567placed In the hands of a receiver by the State court, the surety on the attachment bond will remain bound in the jurisdiction of the State court, notwithstanding the adjudication in bankruptcy, for the receiver take's title to the individual property subject to the existent lien by attachment, and the judgment upholding it.

6. Judgments — Interest of Court — Voidable Judgments — Waiver—Clerks of Court — Principal and Surety — Surety’s Motion to Set Aside.

A judgment by default final entered by the clerk of the court is not void because of interest, but voidable only, not being in violation of a statute bearing directly on the question, and objection on that ground may be waived by the parties; and while the judgment stands unassailed and unexcepted to by the principal defendants, or by any other directly representing them, it is not open for a surety on an attachment bond given in the case to maintain an objection for his own benefit, and he must conform to his obligation according to its tenor. ' Oormelly v. White, 105 N. ‘C., 65, cited and distinguished.

Appeal by defendant surety from Bond, J., at October Term, 1921, of BUNCOMBE.

Civil action, beard on appeal from judgment of clerk. Tbe action is instituted by plaintiff, returnable to July Term, 1921, against Scott Dillingham as an individual and Scott Dillingbam, Incorporated, to recover tbe sum of $2,000 due upon tbe purchase price of an automobile sold to defendants, and which sum defendants expressly promised to pay plaintiff. There was an attachment issued in the cause, which was duly levied on property of defendants, and defendants gave bond in the cause with J. L. Page as surety, to the effect that said defendants. and surety would pay any and all sums that plaintiff should recover in the action, and thereupon the said attachment was dissolved and the property attached was redelivered to the defendants. It further appeared that the summons in the cause was issued on 1 July, 1921, returnable 15 July, and that a verified complaint was duly filed at the time of issuing the summons, and at time for answering same, 1 August, defendants not being ready, time was extended to 5 October, and defendant still having failed to answer and complaint verified, as stated, showing money demand for sum certain, judgment by default was rendered against defendants and J. L. Page for the amount of the demand, etc., the appeal being taken. That on 6 October, the said surety moved before the clerk to set aside said judgment and to dismiss the action for that defendants Scott Dillingham, Inc., had been adjudged a bankrupt, and said case in bankruptcy was now pending in the TI. S. District Court, and for that Jonathan H. Oathey had been appointed receiver against Scott Dilling-ham, the individual, in an action in the State Superior Court, motion was overruled and on appeal taken the judgment was affirmed in the Superior Court, as stated.

Defendant, the surety, excepted, and appealed, assigning errors.

*568 W. P. Brown for plaintiff.

. Jones, Williams & Jones for defendant.

Hoke, J.

It is objected to tbe -validity of tbis judgment in denial of appellant’s motion: tbat tbe complaint does not set out a cause of action in wbicb judgment by default final can be entered, but tbe objection is without merit. Tbe complaint being on a moneyed demand for a sum certain, with an express promise to pay tbe same, and so coming witbin tbe direct provisions of tbe statute on tbe subject. Bostwick v. R. R., 179 N. C., 485; C. S., 595. Nor can tbe exception be sustained tbat tbe act authorizing judgment by default final before tbe clerk is . unconstitutional, C. S., 593, in tbat it ignores tbe constitutional principle tbat tbe judges of tbe Superior Court must act in these matters, citing for tbe position tbe decision of Rhyne v. Lipscombe, 122 N. C., 650. In tbat case it was held tbat tbe Superior Court could not be deprived of tbe jurisdiction possessed by it at tbe time of tbe adoption of tbe Constitution, and fully recognized by tbat instrument as having general supervisory power over inferior tribunals of tbe State; and, therefore, an act of tbe Legislature wbicb provided for an appeal from an inferior court direct to tbe Supreme Court, in entire disregard of tbe recognized powers of tbe Superior Court, was unconstitutional, but tbe act in question here does not come witbin tbe inhibition of any such principle. For tbe reason, in tbe first place, tbat in matters of tbis kind, tbe clerk is a component part of tbe Superior Court as pointed out in Brittain v. Mull, 91 N. C., 498, and other like cases. Second, because tbe power of tbe judge as presiding officer of tbe Superior Court is fully recognized and preserved by tbe right of appeal to him in all such cases by express provisions of tbe law. C. S., 593. Appellant excepts further that tbe attachment bond signed by him having only one surety is not a statutory bond, and no judgment, therefore, can be bad thereon without suit. It is not contended in support of tbis position tbat tbe bond was to be signed by any other surety, or tbat tbe same is otherwise than intended by tbe parties. It is given in form as tbe statute requires, not for tbe forthcoming of tbe property, but for tbe payment of tbe judgment tbat is recovered in tbe action, C. S., 815, and while plaintiff could have excepted to tbe sufficiency of tbe instrument because executed by only one surety, tbis was not done, but tbe bond was given and received without objection as a statutory bond, and tbe attachment having been dissolved and tbe property delivered to defendants of record by reason of same, tbe appellant is concluded and may not now maintain tbe position tbat a judgment in personam on tbe bond is improper. Moffitt v. Garrett, 23 Okl., 398; Riddle v. Baker, 13 Cal.,. 295; Pico v. Webster, 14 Cal., 202; McLean v. Wright, 137 Ala., 644; Bunneman v. Wagner, 16 Oregon, 433; *569 Fidelity Co. v. Bowen, 123 Iowa, 356. Again, it is contended that the judgment is invalid because of the fact that (a) within four months from the institution of the action Scott Dillingham, Inc., has been adjudged a bankrupt and the proceedings in said case are still pending; (&) within four months from commencement of the action the clerk of the court, Jonathan H. Cathey, in same suit in the State court was appointed receiver of the property of Scott Dillingham, the individual. It may suffice to say, in answer to this objection, that neither of the facts suggested in the objections are pleaded or in any way established in the proceedings, nor do we find any evidence offered in support of them except that they are stated by appellant ás a part of his motion. This being true, we find no authority to sustain a motion to set aside a final judgment at the instance of the surety, the only appellant in the cause, when neither of the principal defendants are making any objection and neither the trustee in bankruptcy, nor the receiver in the State court are even parties in the cause, and if it were otherwise, the bankruptcy proceedings, avoiding liens acquired within four months, only extends to the affairs of the corporation. In the proceedings in the State court the title of the receiver only takes its rise from the date of the appointment. Hardware Co. v. Holt, 173 N. C., 308; C. S., secs. 860, 1210.

There is nothing, therefore, in the State proceedings referred to that impairs or threatens the prior lien of plaintiff’s attachment, and the judgment being against both defendants, the surety’s obligation holds as to the liability of Scott Dillingham, the individual, and the judgment ..against appellant, therefore, should in no event be disturbed. 2 R. C. L., title Attachment, sec. 82, citing, among other cases, Pelzer Mfg. Co. v. Pitts, 76 S. C., 349. It is contended finally that as Cathey, the clerk, is both trustee in bankruptcy of the corporation and receiver under State proceedings of Scott Dillingham, the individual, he has such an interest in the subject-matter of the suit as disqualifies him from hearing the matter or entering any judgment therein. As we have heretofore shown, these facts are nowhere shown in the record, except as they are suggested by him as the basis for appellant’s motion. Defendants do not set up such facts in their pleadings, and neither the alleged trustee in bankruptcy nor the receiver are parties to the record, nor have they applied to become such. Apart from this, even if it be conceded that the clerk who ■entered the judgment was such trustee and receiver, and as such had a pecuniary interest in the subject-matter of the suit, a judgment entered by him is not void unless in violation of some statute bearing directly ■on the question, it is only voidable, and can be and frequently is waived by the parties. Moses v. Julian, 45 N. H., 52, reported also in 84 American Dec., p. 114, with a helpful and informing note on the subject. *570This being true, while the judgment stands unassailed and unexcepted to by the principal defendants, or any other directly representing them, it is not ojien to the surety on the attachment bond to maintain an objection for his own benefit. As to any and all such objections, while the judgment stands as to the principal debtors, the surety is concluded and must conform to his obligation according to its tenor. 2 R. O. L., title Attachment, secs. 101 and 106, and authorities cited. It may be well to note that in White v. Connelly, 105 N. C., 65, and other like decisions in this State, where the action of a judicial officer was held to be void there was a statute containing express provisions which disqualified the officer in the case as presented.

We find no error in the record, and judgment denying appellant's motion is

Affirmed.