Comm'rs of Alamance v. Blair

• Court: North Carolina Supreme Court
• Writing for the Court: RODMAN
• Citation: Comm'rs of Alamance v. Blair, 76 N.C. 136 (N.C. 1877)
• Decision Date: 31 January 1877
• Parties: COMMISSIONERS OF ALAMANCE v. J. A. BLAIR, Admr. of B. B. Bulla

76 N.C. 136

COMMISSIONERS OF ALAMANCE

v.J. A. BLAIR, Admr. of B. B. Bulla

Supreme Court of North Carolina.

January Term, 1877.

CIVIL ACTION, tried at Fall Term, 1876, of RANDOLPH Superior Court, before Kerr, J.

His Honor, by consent of the parties, found the facts to be as follows: In 1864 or 1865, the County of Randolph became indebted to sundry citizens of Alamance County, including the Sheriff, Jailor and Clerk of the Superior Court, in the sum of $441.85 for costs and jail fees, incurred by the removal of the case of State v. Modlin and others (who were charged with burglary) from Randolph to Alamance for trial. At Spring Term, 1866, of the Superior Court of Alamance, a nolle pros. was entered and the case dismissed. Subsequently a bill of costs in favor of said officers and others, amounting in all to $549.48, was sent to B. B. Bulla, at that time Clerk of the Superior Court of Randolph. Upon presentation to the proper authorities of said County, an order was made for the payment thereof. This order was afterwards approved by the Board of County Commissioners in December, 1868.

The amount due as aforesaid was paid by Alamance County to the parties entitled.

Bulla died in July, 1872, and Blair was appointed administrator. No part of said amount was ever paid to Bulla, as Clerk aforesaid or otherwise.

In 1874, and before this action was brought, the Sheriff of Randolph paid to Blair the administrator of Bulla, the amount due upon said order and was credited with the same in his settlement with the County. A demand was made upon Blair as administrator to pay said amount.

Upon the foregoing facts, His Honor held that this action could not be maintained.

The plaintiffs' counsel then moved for judgment against Blair individually, which motion was overruled. Judgment in favor of defendant for costs Appeal by plaintiffs.

Messrs. Scott & Caldwell, for plaintiffs .

Messrs. Mendenhall & Staples, and J. A. Gilmer, for defendant .

RODMAN, J.

It is conceded by both parties, that upon the facts found by the Judge, the plaintiffs were not entitled to the judgment demanded in their complaint, which was against Blair as administrator of Bulla. Bulla never received the money and was never indebted to the plaintiffs. We may assume for the present purpose, that upon the facts found, the plaintiffs were entitled to judgment against Blair individually. The plaintiffs without moving to amend their complaint so as to make it conform to the proof moved...