Lee v. Beaman

• Decision Date: 30 June 1875
• Citation: 73 N.C. 410
• Parties: THOMAS M. LEE v. JOHN R. BEAMAN, Adm'r of JONAS PETERSON, deceaed.
• Court: North Carolina Supreme Court

73 N.C. 410

THOMAS M. LEE

v.JOHN R. BEAMAN, Adm'r of JONAS PETERSON, deceaed.

Supreme Court of North Carolina.

June Term, 1875.

In an action against an administrator to recover upon a former judgment against his intestate: IT WAS HELD,

(1.) That a demurrer to the answer of the defendaut, on the ground that it did not state what disposition, if any, had been made of the real estate of the intestate, is insufficient, where it is not alleged in the complaint, and did not appear that there was any real estate.

(2.) A demurrer to an answer “for that it does not state that the entire personal property of the intestate has been exhausted,” must be overruled, where it is alleged in the answer that, “the Confederate money thus received, was the only assets remaining in the hands of the defendant, and that the same is worthless.”

(3. That a demurrer upon the ground, “that the answer does not state by whom, nor to whom, nor in what amount refunding bonds were executed,” must be overruled when the answer states, “that refunding bonds were taken from the next of kin according to law, with solvent sureties, and filed in the Olerk's office, and that these bonds had become insolvent by the results of the war.”

(4.) That a demurrer, “because the answer does not state at what time the defendant received Confederate money for the property of his intestate,” must be overruled, when the answer does state the date and terms of the sale, and that the money was paid when due.

This was a CIVIL ACTION, to recover a former judgment, tried before his Honor, Judge Kerr, at the Spring Term, 1875, of the Superior Court of SAMPSON county, upon the plaintiff demurrer to the defendant's answer.

The Court after inspection of the pleadings, and after argument, gave judgment sustaining the demurrer, and in favor of the plaintiff for the amount claimed in the complaint. From this judgment the defendant appealed.

The grounds of the plaintiff's demurer, with the necessary facts pertinent thereto are fully set out in the opinion of the Court.W. S. & D. J. Devane and Smith & Strong, for appellant .

Merrimon, Fuller & Ashe and Kerr & Kerr, contra .

READE, J.

We are confined to the specific causes assigned for demurer. If they are sufficient, then the case would be sent back to the end that the defendant may amend his answer, or the plaintiff have judgment, as the case may be. If insufficient, then the answer stands as sufficient, and the defendant should have judgment unless the complaint be amended on leave.

I. The first cause assigned for demurrer, “that the answer does not state what disposition, if any, has been made of the real estate of the intestate,” is insufficient; because it is...