Bacon v. Berry
| Decision Date | 31 October 1881 |
| Court | North Carolina Supreme Court |
| Parties | JAS. W. BACON, Ex'r, v. JOHN BERRY, Adm'r. |
PROCEEDING in nature of creditor's bill heard at Fall Term, 1881, of Orange Superior Court, before Gudger, J.
This was a creditor's bill, filed by the plaintiff against defendant, as administrator of Isaac Holden, deceased, before the clerk of the court under the act of 1871-'72, ch. 213, for an account and settlement of the defendant's administration, and for payment of a judgment which plaintiff's testator, Duncan Carrington, had recovered before a justice of the peace against the defendant's intestate. The summons was dated March 4, 1881.
The complaint alleged: 1. That on the 10th of August, 1872, Duncan Carrington obtained a judgment before a justice in Orange county against John T. Lyon and Isaac Holden for sixty-one dollars with interest and costs. 2. That a transcript of the same was docketed in the superior court on the 31st of January, 1879. 3. That Harrington was dead, and the plaintiff had qualified as his executor. 4. That Holden was dead, and the defendant was his administrator. Judgment was demanded that defendant come to an account of his administration, and pay to plaintiff the amount due upon said judgment out of the personal estate, if sufficient, but if not, that proceedings be taken against the heirs to subject the lands, &c.
The defendant demurred to the complaint and assigned as grounds therefor: 1. That said judgment being rendered on the 10th of August, 1872, was dormant after one year, and the plaintiff had no legal right to issue execution after August 10th, 1873, nor to transfer the same to the superior court and have it docketed, unless he had obtained a new judgment thereon; and it appearing from the complaint that the transcript was obtained on the 31st of January, 1879, the defendant insists that the judgment was not legally docketed in the superior court. 2. As appears from the complaint, more than seven years have elapsed from the rendition of the judgment to the bringing of this action.
Upon the hearing, the court adjudged that the demurrer be sustained and the action dismissed, and the plaintiff appealed.
Mr. John W. Graham, for plaintiff .
Mr. Isaac Strayhorn, for defendant .
This proceeding is in the nature of a creditor's bill, filed under the act of 1871-'72, ch. 213, and is for an account and settlement of the estate of the defendant's intestate.
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...v. Terry, 109 N.C. 8, 13 S.E. 713; Randolph v. Randolph, 107 N.C. 506, 12 S.E. 374; Guthrie v. Bacon, 107 N.C. 337, 12 S.E. 204; Bacon v. Berry, 85 N.C. 124; Long v. Bank, 81 N.C. 41; Green v. N. C. Railroad Co., 73 N.C. A statute of limitations is not available as a defense or bar to an ac......
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