Colson's Ex'rs v. Wade's Ex'rs

• Citation: 5 N.C. 43
• Court: United States State Supreme Court of North Carolina
• Decision Date: 30 June 1805
• Parties: COLSON'S EXECUTORS v. WADE'S EXECUTORS.

5 N.C. 43

COLSON'S EXECUTORS

v.WADE'S EXECUTORS.

COURT OF CONFERENCE OF NORTH CAROLINA

JUNE TERM, 1805.

From Fayetteville.

After judgment by default and before the execution of a writ of inquiry, the defendant dies. The plaintiff executes his writ of inquiry, and final judgment is rendered in his favor. This judgment is erroneous and void in law, and reversible upon a writ of error.

THIS was a writ of error brought to reverse a judgment recovered by Thomas "Wade against John Colson and others in Anson County Court in 1782. The facts were that Thomas Wade sued out an original attachment against John Colson, Isaac Portenberry and others, returnable to the County Court of Anson, which attachment being levied and returned, and the defendants failing to appear and replevy the property levied on, judgment by default was entered against them at July Term, 1782, and a writ of inquiry awarded. On 1 August, 1782, Isaac Portenberry, one of the defendants, died, and at October term of the same year the writ of inquiry was executed; the plaintiff's damages were assessed and judgment rendered against the defendants. The error assigned was that before the giving of the said judgment, Isaac Fortenberry,one of the defendants, died, and the jury having found that he died in August, 1782, subsequent to the judgment by default, but before the rendering of the final judgment upon the execution of the writ of inquiry, the case was sent to this Court upon the question, "Whether the said judgment was erroneous and ought to be reversed."

BY THE COURT. The judgment in this case is erroneous and void in law. Let it be reversed and the plaintiffs in error be restored to all things which they have lost thereby, and the defendants in error pay the costs.

Cited: Burke v. Stokely, 65 N. C., 571; Lynn v. Lowe, 88 N. C., 481.