{
  "id": 2569307,
  "name": "DORIS HARSHAW d/b/a HARSHAW BONDING COMPANY and JO WILKINS d/b/a JO WILKINS BONDING COMPANY, Plaintiffs v. HUSSAIN MUSSALLAM MUSTAFA, Defendant; JOHN ESSA and NABIL HANHAN, Individually and doing business as Sultana Investments, a Partnership, Intervenor Defendants",
  "name_abbreviation": "Harshaw v. Mustafa",
  "decision_date": "1987-12-02",
  "docket_number": "No. 109PA87",
  "first_page": "288",
  "last_page": "290",
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    "name": "Supreme Court of North Carolina"
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  "last_updated": "2023-07-14T17:04:28.747837+00:00",
  "provenance": {
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  "casebody": {
    "judges": [],
    "parties": [
      "DORIS HARSHAW d/b/a HARSHAW BONDING COMPANY and JO WILKINS d/b/a JO WILKINS BONDING COMPANY, Plaintiffs v. HUSSAIN MUSSALLAM MUSTAFA, Defendant; JOHN ESSA and NABIL HANHAN, Individually and doing business as Sultana Investments, a Partnership, Intervenor Defendants"
    ],
    "opinions": [
      {
        "text": "MARTIN, Justice.\nThis appeal raises the issue of whether plaintiffs, who are sureties on bonds issued by their principal, defendant Mustafa, can sue their principal before paying all or part of the penal amount of the bonds. We conclude that they cannot and therefore reverse the Court of Appeals.\nPlaintiffs brought this action alleging that they are sureties on two appearance bonds, in the total amount of $25,000, to assure the appearance of defendant Mustafa in the District Court of Guilford County on 31 May 1985. Defendant failed to appear. Although the presiding judge ordered forfeiture of the bonds, plaintiffs do not allege, nor is there proof, that they have made any payment on the bonds. Plaintiffs seek to recover from their principal, Mustafa, judgment for $25,000. By ancillary proceedings, plaintiffs also attached certain real property allegedly owned by Mustafa.\nThe intervening defendants claim that Mustafa conveyed the real property to them on 28 May 1985, although the deed was not recorded until 12 June 1985, after the attachment against the property on 7 June 1985. Intervening defendants made a motion under Rule 60(b) of the North Carolina Rules of Civil Procedure to set aside the judgment against Mustafa and a motion to dissolve the attachment pursuant to N.C.G.S. \u00a7 1-440.43, as well as a motion to dismiss plaintiffs\u2019 complaint under N.C.R. Civ. P. 12(b)(6). All motions were denied, and intervenor defendants appealed to the Court of Appeals.\nAlthough the facts appear to be complex, the legal issue on appeal is narrow: May a surety on an appearance bond sue his principal before the surety has paid all or part of the bond? The Court of Appeals answered in the affirmative, holding that a surety\u2019s cause of action accrues where forfeiture of an appearance bond is ordered and the principal has evaded process by leaving the jurisdiction. We disagree.\nSince the opinion of Justice Ruffin in Hodges v. Armstrong, 14 N.C. 253 (1831), this Court has steadfastly held that a surety\u2019s cause of action does not accrue until he makes payment on the debt of the principal. A judgment against the surety will not suffice. Id. The principal is not obligated to his surety until his surety has made a payment. Insurance Co. v. Gibbs, 260 N.C. 681, 133 S.E. 2d 669 (1963). The surety\u2019s right of action accrues at the time of payment, not before. Id.\nThese rules of law have now been substantially codified in N.C.G.S. \u00a7 26-3.1(a):\nA surety who has paid his principal\u2019s note, bill, bond or other written obligation, may either sue his principal for reimbursement or sue his principal on the instrument and may maintain any action or avail himself of any remedy which the creditor himself might have had against the principal debtor. No assignment of the obligation to the surety or to a third-party trustee for the surety\u2019s benefit shall be required.\n(Emphasis added.)\nWe continue to adhere to the principles above stated. Because plaintiffs\u2019 causes of action had not accrued against Mustafa, the trial judge should have allowed intervenor defendants\u2019 motions to set aside the judgment and to dismiss the action under N.C.R. Civ. P. 12(b)(6).\nThe decision of the Court of Appeals is reversed and the case is remanded to that court for remand to the Superior Court, Guilford County, for further proceedings not inconsistent with this opinion.\nReversed and remanded.\n. Mustafa has evidently fled the jurisdiction and has made no appearance in this action.",
        "type": "majority",
        "author": "MARTIN, Justice."
      }
    ],
    "attorneys": [
      "Hatfield & Hatfield, by John B. Hatfield, Jr., for plaintiffappellees.",
      "Benjamin D. Haines for intervenor defendants, appellants."
    ],
    "corrections": "",
    "head_matter": "DORIS HARSHAW d/b/a HARSHAW BONDING COMPANY and JO WILKINS d/b/a JO WILKINS BONDING COMPANY, Plaintiffs v. HUSSAIN MUSSALLAM MUSTAFA, Defendant; JOHN ESSA and NABIL HANHAN, Individually and doing business as Sultana Investments, a Partnership, Intervenor Defendants\nNo. 109PA87\n(Filed 2 December 1987)\nArrest and Bail \u00a7 11.2\u2014 appearance bond \u2014 forfeiture order \u2014 accrual of surety\u2019s action against principal\nThe trial judge should have allowed intervenor defendants\u2019 motions to set aside a judgment and to dismiss an action under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) where plaintiffs were sureties on an appearance bond, the intervening defendants claimed that the principal had conveyed real property to them, the principal had fled the jurisdiction, and plaintiff sureties had made no payment on the bond. A surety\u2019s cause of action does not accrue until he makes payment on the debt of the principal. N.C.G.S. \u00a7 26-312(a).\nON intervenor defendants\u2019 petition for discretionary review of the decision of the Court of Appeals, 84 N.C. App. 296, 352 S.E. 2d 247 (1987), affirming orders of Williams, J., at the 27 January 1986 session of Superior Court, GUILFORD County, denying intervenor defendants\u2019 motions to dismiss plaintiffs\u2019 complaint and to vacate default judgment against defendant. Heard in the Supreme Court 11 November 1987.\nHatfield & Hatfield, by John B. Hatfield, Jr., for plaintiffappellees.\nBenjamin D. Haines for intervenor defendants, appellants."
  },
  "file_name": "0288-01",
  "first_page_order": 316,
  "last_page_order": 318
}