Mallard v. Patterson

• Decision Date: 14 April 1891
• Citation: 13 S.E. 93,108 N.C. 255
• Parties: Mallard et al. v. Patterson.
• Court: North Carolina Supreme Court

13 S.E. 93

108 N.C. 255

Mallard et al. v. Patterson.

Supreme Court of North Carolina

April 14, 1891

Appeal from superior court, Iredell county, Bynum, Judge.

It appears that Ann Patterson died intestate in the county of Iredell before the 4th day of October, 1875, and on that day the defendant was appointed and qualified as administrator of her estate, and gave notice to all persons having claims against the estate to exhibit the same to him within twelve months, etc., as required by the statute. Code, § 1421. The defendant brought an action against certain parties, which was not determined until after the lapse of several years and then adversely to him. In the mean time he had failed to wind up and administer the estate in his hands according to law. Within twelve months next after he gave notice to creditors to present their claims he paid to certain of the next of kin of the intestate considerable sums of money, on account of their respective distributive shares, and took their receipts for the same. On the 3d of February, 1883, the plaintiffs brought this special proceeding, in behalf of themselves and all other creditors of the said intestate, to compel the defendant to an account of his administration, and to pay the creditors what might be payable to them respectively. The defendant was duly served with a summons on the 19th of February, 1883. On the 3d of March, 1883, the plaintiffs filed their complaint, alleging a cause of action and the indebtedness of the intestate to them, respectively for divers sums of money. Thereupon the clerk advertised for all creditors of the intestate to appear before him on or before the time designated, and file evidence of their claims, etc. Afterwards, on the 9th of April, 1883, the defendant moved to dismiss the proceeding because the advertisement was not regular and was insufficient. The motion was denied, and fresh advertisement made. The defendant did not then answer the complaint, but the court gave time to answer until the 21st of May, 1883. Afterwards a further advertisement was made for creditors to present their claims on or before the 7th of September, 1889. Notice was also served upon the defendant to appear before the clerk on the same day, to exhibit on oath a list of all claims against his intestate's estate, etc. Afterwards, on the 1st of October, 1889, upon affidavit filed, the defendant moved to be allowed to file his verified answer to the complaint. The complaint was verified when filed. An answer, unverified, was found among the papers, but when it was filed did not appear. After contention of the parties, the clerk allowed the defendant to file an answer, in which he might "set up only meritorious pleas, to wit, allowed him to set up only pleas of payment, counter-claims, or set-offs which he might have," but he was not allowed to plead the statute of limitations. The defendant excepted. Afterwards the clerk examined claims presented by creditors of the intestate heard evidence, etc., filed his report of account stated, etc. To this report the defendant filed divers exceptions, which were not sustained. The clerk gave judgment for the plaintiffs, and the defendant appealed to the judge of the court in term-time. The court, in term-time, overruled all the defendant's exceptions, found the facts to be as found by the clerk, and affirmed his rulings, and gave judgment upon the report for the plaintiffs, and, the defendant having excepted, appealed to this court.

Armfield & Turner, for appellant.

W. M. Robbins, for appellees.

Merrimon,...