Murphy v. Harrison

• Court: North Carolina Supreme Court
• Writing for the Court: DICK
• Citation: Murphy v. Harrison, 65 N.C. 246 (N.C. 1871)
• Decision Date: 31 January 1871
• Parties: ROBERT MURPHY and others v. HARRISON, MCCUBBINS and another.

65 N.C. 246

ROBERT MURPHY and others

v.HARRISON, MCCUBBINS and another.

Supreme Court of North Carolina.

January Term, 1871.

A civil action in the nature of a bill in equity to surcharge and falsify an account stated, must be brought before the Judge of the Superior Court at the regular term of the Court, and not before the Judge of Probate.

If an executor or administrator refuse to bring an action to surcharge and falsify an account by which his testator's or intestate's estate has been injured, such action may be brought by the legatees or next of kin, and in doing so, they should make the executor or administrator a party defendant together with the other defendant.

The cases of Tate v. Powe, 64 N. C. Rep. 644, Nance v. Powell, 4 Ired. Eq. 297, Fleming v. McKesson, 3 Jones Eq. 316, cited and approved.

This was a civil action brought before the Judge of the Superior Court of ROWAN County, at the regular Term of the Court, and at the Fall Term, 1870, thereof, a motion was made by the counsel for the defendants to dismiss the suit for want of jurisdiction, which was granted by his Honor, Henry, J., and the plaintiff appealed. The facts are sufficiently stated in the opinion of the Court.

Boyden & Bailey, for the plaintiffs .

Blackmer & McCorkle, for the defendants .

DICK, J.

The merits of this controversy are not before us for determination. The appeal is from a decision of his Honor upon a question of jurisdiction. The allegations of the complaint present a case which, under our old judicial system, was only cognizable and relievable in a Court of Equity.

The intestate, William Murphy, was the surviving partner of the firm of J. & W. Murphy, and would up the business of the co-partnership. He was also co-executor with the defendant, James Murphy, of the estate of his co-partner, John Murphy.

In 1853, the said executors made a final return of their administration of the estate, which professed to include the amount due the estate from said co-partnership.

The plaintiffs settled with the executors upon this basis, which gave the final account the force and effect of an account stated, and was at law conclusive between the parties. A Court of Equity would have allowed the account to be opened, if important errors were specified and proved, and application made within reasonable time. Adams Eq. 222.

The plaintiffs allege a very important error, and ask that they may be allowed an opportunity to surcharge and falsify said account, in that respect. They give as a reason for their delay in the matter, the recent and accidental finding of ...