Loven v. Parson
| Decision Date | 04 December 1900 |
| Citation | 37 S.E. 271,127 N.C. 301 |
| Court | North Carolina Supreme Court |
| Parties | LOVEN. v. PARSON. |
REPLEVIN — JUDGMENTS — JURISDICTION OF PERSONS—ALLOWANCE OF ATTORNEY'S FEE —APPEAL—SPECIAL APPEARANCE.
1. Where a collector of an estate obtains possession of estate property under claim and delivery proceedings, and on the appointment of an administrator delivers the property to him, but the administrator is not made a party to the suit, it is error to tax the costs of the suit against him.
2. The superior court cannot make an allowance for attorney's fees in claim and delivery proceedings.
3. Where a judgment for costs is rendered in a claim and delivery proceeding against a person who is not a party thereto, and who does not appear on the record as a party, such person may appeal on a special appearance made for that purpose.
Appeal from superior court, Burke county; Bowman, Judge.
Action of claim and delivery by G. A. Loven against A. B. Parson. From a judgment taxing the costs to W. S. Hall, he appeals. Reversed.
Isaac T. Avery, for appellant.
John T.Perkins, for appellee.
The plaintiff, collector of an estate, took possession of certain personal property under claim and delivery proceedings. An administrator having been appointed, the plaintiff turned the personal property over to him. At the term of court the plaintiff obtained judgment by default final against the defendant for the goods, and was also entitled to judgment for costs against him. But, instead thereof, the judgment contains a recital that the defendant is insolvent, and a judgment that the plaintiff recover of the estate in the hands of the administrator (who had not been made a party to the action) for the costs, and for the further sum of $10 disbursed for counsel fees. Why the collector did not deduct his expenditures when he turned over the property does not appear. Properly, the administrator should have been substituted as party plaintiff, having been appointed before final judgment. Certainly all just and proper disbursements for costs and counsel fees by the collector can be proved against the estate, and recovered against the administrator, if he refuses to pay. But this must be done in the proper legal method and forum, the administrator having his day in court, and an opportunity to contest the necessity, the validity, or the amount of such disbursements. It is error to ingraft such alien matter in this action, and, even if that could be done, it was error to do so when the administrator had not been made a...
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Summerlin v. Morrisey
...a matter for the parties to correct by appeal, if they are inclined to do so, and it is not a matter for the commissioner. Loven v. Parson, 127 N. C. 301, 37 S. E. 271; Blount v. Simmons, 118 N. C. 9, 23 S. E. 923. While these authorities are not on all fours with this case, the principles ......
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Howard v. Boyce
...67, 29 S.E.2d 26; Johnson v. Whilden, 171 N.C. 153, 88 S.E. 223; Allred v. Smith, 135 N.C. 443, 47 S.E. 597, 65 L.R.A. 924; Loven v. Parson, 127 N.C. 301, 37 S.E. 271; Falls v. Gamble, 66 N.C. The court, on the findings made, correctly adjudged that the judgment rendered in 1945 was not bin......
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