Buchanan Et Ux v. Oglesby

• Decision Date: 10 October 1934
• Docket Number: No. 175.,175.
• Citation: 207 N.C. 149,176 S.E. 281
• Parties: BUCHANAN et ux. v. OGLESBY et al.
• Court: North Carolina Supreme Court

207 N.C. 149

176 S.E. 281

BUCHANAN et ux.

v.OGLESBY et al.

No. 175.

Supreme Court of North Carolina.

Oct. 10, 1934.

Appeal from Superior Court, McDowell County; Finley, Judge.

Action by C. W. Buchanan and his wife against John M. Oglesby and others. From a judgment denying defendants' motion of nonsuit, defendants appeal.

Affirmed.

The following judgment was rendered in the court below:

"This cause coming on to be heard before His Honor, T. B. Finley, Judge holding the courts of the Eighteenth Judicial District, and being heard at the June Term, 1934, of the Superior Court of McDowell County, North Carolina, and after a Jury had been sworn and empaneled, the pleadings read, the defendants, through their attorneys, move for judgment to dismiss the action for that it was res judicata, and from the records and admissions of counsel, the court finds the following facts:

"(1.) That on December 10, 1931, the First National Bank of Marion, North Carolina, and other creditors of the D. E. Hudgins estate instituted a proceeding against the defendants, John M. Oglesby, Carter Hudgins, and D. E. Hudgins, Jr., Co-Executors of the estate of D. E. Hudgins, deceased, under section 110 of the Consolidated Statutes of North Carolina, asking for a final settlement of said estate, in which proceeding a notice was duly given to all creditors of said estate to file evidence of any claim that they might have against the defendants who were co-executors of the said estate, and that the claim of Chesley W. Buchanan and wife, Attie A. Buchanan was presented to the defendants as co-executors of said estate for the return of a certain life insurance policy on the life of the said Chesley W. Buchanan, and that said Executors disputed said claim on January 20, 1932 in a written statement filed by said co-executors with the Clerk of Superior Court of McDowell County, North Carolina, and that the plaintiff, pursuant to notice issued to them by the Clerk of Superior Court of said County on January 22, 1932, filed a complaint in said proceeding under Section 119 of the Consolidated Statutes, January 29, 1932 after they had caused summons to be issued for the defendants on the 29th day of January, 1932, which, with the complaint of the plaintiffs therein, was duly served on the defendants, Carter Hudgins, co-executor of the D. E. Hudgins estate on the 29fh day of January 1932 and on the defendant, D. E. Hudgins, Jr., co-executor of said estate on the 5th day of February, 1932 and on the defendant, John M. Oglesby, co-executor of said estate on February 20, 1932, to which complaint the defendant filed their answer on February 25th, 1932.

"(2.) That said cause came on for trial at the June Term, 1932 of said court, before His Honor, W. F. Harding, Judge Presiding, and after the Jury had been sworn and empaneled, and the pleadings read, the defendants offered the court summons in said action for the purpose of showing when the action was commenced, and moved for judgment of nonsuit upon the pleadings for that the plaintiffs' cause of action was barred by the three-year statute of limitation, upon the allegations of the complaint and the inspection of the record, to-wit, the summons, the court...