Dunn v. Beaman

• Decision Date: 29 May 1900
• Citation: 36 S.E. 174,126 N.C. 764
• Court: North Carolina Supreme Court
• Parties: DUNN. v. BEAMAN.

126 N.C. 764

36 S.E. 174

DUNN.

v.BEAMAN.

Supreme Court of North Carolina.

May 29, 1900.

APPEAL AND ERROR—FINDING—REVIEW—EXECUTORS AND ADMINISTRATORS—CLAIMS-PARTNERSHIP—JUDGMENTS—DEMAND.

1. A finding of fact by a referee, approved by the trial court, is conclusive on appeal, where there is evidence to sustain it.

2. Where two of the partners of a firm paid a judgment to the judgment creditor, such payment extinguished the judgment, and the assignee thereof was not entitled to prove it as a claim against the estate of the third partner.

Appeal from superior court, Sampson county; Timberlake, Judge.

Action by W. A. Dunn, receiver, etc., against M. R. Beaman, executrix of the estate of J. R. Beaman, deceased, in which M. J. Hobbs sought to establish a claim against tne estate. From a judgment dissolving the claim, Hobbs appeals. Affirmed.

Stevens & Beasley and Geo. E. Butler, for appellant.

H. G. Connor & Son and R. O. Burton, for appellee.

CLARK, J. This was a proceeding by a creditor under Code, § 1448, to compel an account and settlement of the estate of John R. Beaman. The claim of M. J. Hobbs, the appellant, was No. 17, as numbered by the referee. The appellant, Hobbs, contended that he was assignee of a judgment which

had been rendered against a firm composed of John R. Beaman, J. A. Ferrell, and T. M. Ferrell. The referee found that Hobbs paid no money to the plaintiff in the execution, but that said money was "really, though not directly, paid to him by the judgment debtors, J. A. and T. M. Ferrell." This finding of fact was approved by the judge. There being evidence tending to support the finding, it is conclusive on appeal. Clark's Code (3d Ed.) § 422, and cases cited. The conclusion of law follows that the claim of M. J. Hobbs was extinguished, and properly disallowed. Whatever balance, if any, is due the Ferrells on a settlement of their partnership accounts against John R. Beaman could be proven against Beaman's estate in this action, if not barred by the statute of limitations. This is not the case of a surety paying the debt of a principal, and, if it had been, the judgment was extinguished, because it was not assigned to a trustee for the benefit of the surety. Browning v. Porter, 116 N. C. 62, 20 S. E. 961. No error.