Dobson v. Simonton

• Decision Date: 31 October 1885
• Citation: 93 N.C. 268
• Parties: JOS. DOBSON et als v. ROXANNA SIMONTON, Extr'x, et als.
• Court: North Carolina Supreme Court

93 N.C. 268

JOS. DOBSON et als

v.ROXANNA SIMONTON, Extr'x, et als.

Supreme Court of North Carolina.

October Term, 1885.

CIVIL ACTION, in the nature of a creditor's bill, heard before MacRae, Judge, at Spring Term, 1885, of IREDELL Superior Court.

It appears from the pleadings and the case settled on appeal for this Court, that Robert F. Simonton died in the county of Iredell in the month of February, 1876, leaving a last will and testament which was duly established; that his widow, the defendant Roxanna Simonton, is the sole legatee and devisee under the will and the executrix thereof duly qualified. The estate of the testator is insolvent.

The testator in his lifetime was the sole owner of what purported to be “The Bank of Statesville,” a corporation, which, however, it seems, was never duly organized, but under the name and form of such supposed corporation, the testator did very considerable business, and incurred debts for large amounts.

On the first of March, 1876, the defendant Roxanna Simonton, supposing “The Bank of Statesville” to be indeed such Bank, deposited therein $9,790, and this sum of money was placed to her credit.

This action was brought in the Superior Court of Iredell county by sundry creditors of the testator, “who sue for themselves and all other creditors of the Bank of Statesville, and R. F. Simonton, who will come in and make themselves parties, and contribute to the expense of this suit, against Roxanna Simonton, executrix of R. F. Simonton, deceased,” and others.

In pursuance of orders made in the course of the action, creditors respectively proved their debts against the estate of the testator, and among them the appellant Benjamin F. Long, administrator. The defendant Roxanna Simonton offered to prove her debt, created by the deposit made by her in the supposed bank. The appellant Long, administrator, objected, and pleaded that this debt was barred by the statute of limitation.

It appeared that the debt was created by the deposit mentioned, on the first day of March, 1876. This action was begun on the 21st day of August, 1877. The appellee offered to make proof of her debt on the 5th of December, 1879, but it was not allowed by the auditor taking proof of the debts, until the 13th day of January, 1885. The appellant excepted to such allowance. At the hearing, the Court decided that the debt was not barred by the statute of limitation, overruled the exception, gave judgment for the appellee, and thereupon the defendant Long appealed.

Messrs. D. M. Furches and W. M. Robbins, for the appellant .

Mr. M. L. McCorkle, for the defendant .

MERRIMON, J. (after stating the facts).

No question is presented as to the validity of the debt which the appellee seeks to have paid out of the assets of the testator, and the only question presented for our decision is, was this debt barred by the statute of limitation, that bars such debts after the lapse of three years next after the cause of action upon them accrued?

We think that this question must be answered in the negative. It is to be observed, that this is an action brought by several creditors in behalf of themselves and all other creditors, entitled to share alike in the assets of the estate of the testator, which it is admitted, is insolvent. It does not appear very clearly, whether the action is intended to be a “creditors' action,” as authorized by general principles of equity, or one under and authorized by the statute; (Bat. Rev., ch. 45, §73; The Code, §1448); but it is not material to inquire how this is, as in either case, our opinion would be the same.

Such action is equitable in its nature. Its purpose is to ascertain what the assets of the testator are, and distribute the same among all the creditors entitled to share therein according to their respective rights. In order to effectuate such end, courts, in the exercise of equitable powers, and, in this State, in the exercise of the powers conferred by the statute cited above, allow a few creditors in a proper case, to bring an action in behalf of themselves and all other creditors having like demands against the executor or administrator, as the case may be, charged with the fund to be settled and distributed among them. This is not a mere empty ceremony. The action is not simply nominally and in form for the benefit of all the creditors not designated by their respective names in the summons or complaint. It implies more than that. The law does not trifle with parties, nor does it require the observance of meaningless forms; its methods of procedure carry with them effectiveness--they are always intended to serve an effective purpose. Hence, in an action of this character, all, or any of the creditors, not designated by name at the time of bringing it, will, if they choose to do so, be at liberty to come in in apt time, and share the benefits arising from it. The decrees therein are intended for the benefit of all, but if there be those who decline to come in, as they may do, they will be excluded from the benefits of the decrees made, and yet, being in an essential sense parties to the action, they will be bound by them....