Mcleod v. Graham

• Decision Date: 28 April 1903
• Citation: 43 S.E. 935,132 N. C. 473
• Court: North Carolina Supreme Court
• Parties: McLEOD. v. GRAHAM.

43 S.E. 935

132 N. C. 473

McLEOD.

v.GRAHAM.

Supreme Court of North Carolina.

April 28, 1903.

JUDGMENTS — VACATION — IRREGULARITY — ERROR IN AMOUNT — ADMINISTRATORS — CLAIMS AGAINST ESTATE—PILING CLAIM— SUBMISSION TO ARBITRATION — JUDGMENT ON AWARD—INVALIDITY OF REFERENCE.

1. Acquiescence in a judgment cures the absence of a complaint, which is ground for dismissal under Code Civ. Proc. § 206, providing that an action may be dismissed if plaintiff does not file his complaint on or before, the third day of the term.

2. Code 1883, § 1426, expressly authorizes administrators to enter into an agreement with a person having a claim against the estate submitting such claim to arbitrators.

3. An action brought against an administrator is a sufficient filing of a claim against the estate.

4. Where a defendant was a party to an arbitration of a claim against an estate, and his counsel knew of the arbitration and of the signing of the judgment, an objection that the claim was not sufficiently filed should have been taken in opposition to the judgment, and not on motion to set it aside.

5. On motion by an administrator to set aside a judgment obtained by a creditor of the estate for an alleged irregularity of the judgment, the distributees cannot intervene.

6. After an award has passed into judgment, it is too late to contest the same for an alleged mistake of the arbitrators in computing the amount thereof.

7. After an award has passed into judgment, it is too late to contest that, the arbitration not having been made a rule of court, judgment should not have been entered upon it.

8. Where parties accepted and agreed upon an award as the amount due, judgment thereon was by consent.

9. For an erroneous judgment the only remedy is by appeal.

10. After judgment entered on an award, the invalidity of the reference to arbitration cannot be considered.

Appeal from Superior Court, Cumberland County; Chas. M. Cooke, Judge.

Action by N. A. McLeod against G. W. Graham, administrator, etc. From a judgment setting aside a judgment for plaintiff, he appeals. Reversed.

Rose & Rose, for appellant.

H. L. Cook, for appellee.

CLARK, C. J. This Is an action brought against the defendant administrator for an alleged indebtedness by his intestate to the plaintiff. After suit brought, and without pleadings having been filed, the parties agreed in writing to submit the matter in dispute to arbitration. Code 1883, § 1426. The arbitrators made an award, and reported the same to court, and judgment was duly entered thereon. At the next term a distributee of the estate filed a petition to set aside the judgment, and subsequently thereto the arbitrators filed a statement that they had detected an error in the addition of the figures to the amount of $168, and "authorized and instructed the clerk to change their report in making the award $146.44, instead of $314.44." Notice was issued to the parties of the motion to modify and reduce the judgment, and at February term, 1903, the defendant administrator asked that the judgment be set aside, which the court did upon the ground that it was an irregular judgment. The motion, having been made after the trial term, and not upon any of the grounds set out in Code 1883, § 274, could only be sustained upon the ground of irregularity. Turner v. Davis (at this term) 43 S. E. 937. No fraud is alleged, and, if there had been, it would have been ground for an action, and not for a motion in the cause; this being a final judgment. Carter v. Roun-tree, 109 N. C. 29, 13 S. E. 716.

But we cannot discover any irregularity in the judgment. The action was pending, and the judgment was regularly entered, and in due course. The failure to file a complaint was ground to dismiss the action, if objection had been taken in apt time (Code 1883, § 206); but its absence was cured by acquiescence in the judgment (Vick v. Pope, 81 N. C. 22; Leach v. Railroad, 65 N. C. 485; Stancill v. Gay, 92 N. C. 455; Peoples v. Norwood, 94 N. C. 167; Little v. McCarter, 89 N. C. 233; Robeson v. Hodges, 105 N. C. 49, 11 S. E. 263; McNeill v. Hodges, 105 N. C. 52, 11 S. E. 265; Peebles v. Braswell, 107 N. C. 68, 12 S. E. 44; McLean v. Breece, 113 N. C. 390, 18 S. E. 694). Besides, the submission (in writing) to arbitration, the written award, and the consent to the judgment thereon show that the defendant had as full information as could have been had from a complaint. The submission to arbitration or reference was authorized by Code 1883, § 1426. Lassiter v. Upchurch, 107 N. C. 411, 12 S. E. 63. The action brought was sufficient"filing" the claim (...