Ijames v. McClamroch

• Court: North Carolina Supreme Court
• Writing for the Court: ASHE
• Citation: Ijames v. McClamroch, 92 N. C. 362 (N.C. 1885)
• Decision Date: 28 February 1885
• Parties: DENTON IJAMES v. G. C. MCCLAMROCH et als.

92 N.C. 362

DENTON IJAMES

v.G. C. MCCLAMROCH et als.

Supreme Court of North Carolina.

February Term, 1885.

This was A CIVIL ACTION begun before a justice of the peace and brought by appeal of defendants to the Superior Court, and tried before MacRae, Judge, at the Fall Term, 1884, of DAVIE Superior Court.

The pleadings before the justice were oral. The plaintiff sued upon a bond, and the defendants pleaded payment and set off. In the Superior Court the pleadings were reduced to writing. The plaintiff complained of the non-payment of a bond executed to him by the defendants, and the defendants pleaded payment of the bond, and a counter-claim, founded upon the alleged indebtedness of the plaintiff to them for a balance due them by the plaintiff, for their distributive shares of the estate of James McClamroch, deceased, of whom plaintiff was administrator, and for a balance due on account of the sale of their land, which they had authorized the plaintiff, by power of atttorney, to effect, for the purpose of paying the debts they owed the plaintiff for property purchased by them at a sale by him as administrator, and to pay off the outstanding debts of the estate. The matter was then referred by the presiding Judge at Fall Term 1881, to the clerk, to take an account of the administration of the estate of James McClamroch, deceased, by D. Ijames, his administrator, and also to take and state an account of the moneys received and disbursed by said Ijames under the power of attorney referred to above.

The clerk filed his report at Spring Term, 1883, and at said Term a motion was made to the court by the plaintiff's counsel, to strike out the order of reference and set aside the report of the referee, on the ground that the justice of the peace had no jurisdiction of the counter-claims set up in the answer of defendants.

The Court made an order granting the motion, from which the defendants did not appeal. At the same time leave was granted the defendants to amend their answer, in pursuance of which the defendants filed an amended answer, in which they allege that the amount due them from the proceeds of the sale of the land, made by the plaintiff under the aforesaid power of attorney, was $206 and interest, which the defendants pleaded as a counter-claim to the plaintiff's action, and forgave and remitted to the plaintiff so much of the principal of said claim as is in excess of $200, together with the interest on the excess, and asked for judgment against the plaintiff for the same.

The plaintiff replied to the plea of counter-claim that the justice of the peace had no jurisdiction of the same, and that the counter-claim attempted to be set up was passed upon by the court at Spring Term, 1883, and judgment was rendered by the Court in this case to the effect that the justice of the peace had no jurisdiction of the said counter-claim, and the defendants are thereby estopped from setting up said counter-claim again.

The defendants offered to prove, that when the note was given, the plaintiff stated that he, as administrator, would require but little money; that there was a small balance of debts against the estate; that he would, perhaps, call on them for a small amount of money to pay them, and the notes would then be delivered, and settlement made between the heirs to make them equal; that the plaintiff called on them and their brothers from time to time, claiming that there were debts still due, and they made the payments as endorsed on the notes; that when the last payment of fifty dollars was made by L. N. McClamroch on July 7th, 1884, the plaintiff told defendant he needed some of the money, but very little of it--there would be no more paid to him, and that in about two weeks he would get them all together for a settlement and distribution, and that a part of this money would be left to pay over to the children; that he failed to do this, and that the matter passed along, from time to time the matter being talked over, defendant trying to get a settlement, until this action was commenced. The Court refused to receive this evidence, and the...