Oldham v. Rieger

• Decision Date: 16 October 1907
• Citation: 58 S.E. 1091,145 N. C. 254
• Court: North Carolina Supreme Court
• Parties: OLDHAM. v. RIEGER.

58 S.E. 1091

(145 N. C. 254)

OLDHAM.

v.RIEGER.

Supreme Court of North Carolina.

Oct 16, 1907.

1. Executors and Administrators—Claims — Establishment — Enforcing Payment — Proceedings.

Where a debt was established by a judgment against one in his lifetime, it is not necessary to establish the debt after his death by a new adjudication on the judgment before taking proceedings to enforce payment.

2. Same.

Where, in an action to compel an administrator to account and to pay a judgment against his intestate, limitations were pleaded, the court should first determine that issue, and should not order an account and settlement, under Revisal 1905, § 104 et seq., unless it found against the plea.

3. Same.

Under Revisal 1905, § 129, conferring on the superior court jurisdiction of actions against administrators, and section 614, providing that when any proceeding begun before the clerk of any superior court shall be sent to the superior court, the judge shall have jurisdiction, the superior court has jurisdiction of an action commenced before the clerk to compel an administrator to account and to pay a judgment, and transferred by the clerk to the court.

4. Limitation of Actions — Defenses — Availability.

Under Revisal 1905, § 360, declaring that the objection that an action was not commenced within the time limited can only be taken by answer, the bar of limitations cannot be raised by demurrer or motion to dismiss.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, § 670.]

5. Same.

Where the complaint sets out a cause of action which is barred, and the facts are admitted by answer, and the statutory bar is pleaded, the court may decide the question as a matter of law, but where the complaint states a cause of action apparently barred, and the answer denies the facts and sets up the bar, the court cannot dismiss on a motion for nonsuit, since under Revisal 1905, § 485, a plea of the statute doesnot require a reply, and since, under section 248, evidence that the action is not barred on the ground of infancy, etc., may be shown by evidence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, § 727.]

Appeal from Superior Court, Brunswick County; Webb, Judge.

Action by W. P. Oldham against Sarah M. Rieger. From a judgment of dismissal, plaintiff appeals. Reversed.

The plaintiff alleges, in his complaint, that he recovered judgment against A. W. Rieger on December 14, 1895, for $126.31 in New Hanover county before a justice of the peace, and the judgment was duly docketed on the same day in the superior court under the statute; that the said Rieger died in Brunswick county, the place of his domicile, on December 3, 1903, and the defendants Sarah M. Rieger and M. B. Mintz qualified as administrators of his estate in said county of Brunswick on tbe 8th day of December, 1903; that the plaintiff duly demanded payment of the judgment from the defendants, as administrators, which was refused. They further allege that more than two years have elapsed since the defendants qualified as administrators, and that the judgment still remains unpaid. The defendants answer the complaint and admit the death of A. W. Rieger and administration on his estate, as alleged in the complaint, but they deny all the other allegations of the complaint, except the one that two years have elapsed since letters of administration were taken out by them. They then plead the statute of limitations, denying the material allegations of the plaintiff's complaint, except as hereinbefore stated, and averring that, even if they be true, the plain, tiff's cause of action, upon the facts stated in the complaint and the additional facts averred in their plea of the statute, is barred. The full administration of the estate is alleged, with the usual allegations as to legal notice to creditors, and so forth. The plaintiff brought this action (or proceeding) before the clerk of the superior court of Brunswick county, where administration was granted, to have an accounting of the defendants, as administrators of the estate of A. W. Rieger, and to compel the payment of their judgment; the suit being in the nature of a creditors' bill, under the statute. The clerk ruled that the case was cognizable by him and issued the necessary notices. Upon the issues joined between the parties, he then transferred the case to the superior court at term for trial. The plaintiff moved' to remand the case, and the judge was of the opinion, as we infer from the briefs, though not, necessarily, from the record, that it was the duty of the plaintiff to have prosecuted an independent action upon his judgment, before proceeding to call the defendants to an account of their administration of the estate of their intestate. He thereupon rendered judgment dismissing the action, but coupled it with an order, made in open court, directing the clerk "to require the defendants to file accounts and make a proper settlement of the estate according to the law in such cases made and provided; the said account and settlements to be filed at once, after citation to the proper parties." The plaintiff duly excepted and appealed.

S. M. Empie, for appellant

E. K. Bryan, for appellee.,

WALKER, J. (after stating the facts as above). It is stated in the plaintiff's brief, and the argument, which is so ably presented in the defendant's, seems to admit, that the learned judge, who presided at the trial of this case, ruled as he did, because he was of the opinion that the plaintiff should have sued upon the judgment independently and established his claim against the estate before bringing this proceeding. In this ruling, if it is correctly stated in the briefs, though it does not so clearly appear in the record, we do not concur. There was a special plea in bar, namely, the statute of limitations, and we think this plea should have been determined before ordering an account, or a reference to ascertain the exact condition of the estate. It was not necessary to establish the claim of the plaintiff by a new adjudication upon his judgment. Bank v. Harris, 84 N. C. 206; McLendon v. Commissioners, 71 N. C. 38; Glenn v. Bank, 72 N. C. 626. The debt had already been established by a judgment against A. W. Rieger in his lifetime. The court should have submitted to the jury, unless the parties could agree upon the facts, the issue raised by the pleadings, to wit whether the plaintiff's claim was barred, and, if it was found that the statute was not in the way of the plaintiff's recovery, then the court should have proceeded to order an account and settlement. Revisal 1905, § 104 et seq. The superior court had full possession of the case by the transfer, and therefore jurisdiction, under the statute (Revisal 1905, § 129), and the decisions of this court, to finally determine all matters of controversy between the parties. This has been the law in cases of administrators, since Acts 1876-77, p. 446, c. 241 (Code 1883, § 1511), as construed in Haywood v. Haywood, 79 N. C. 42, and Pe-gram v. Armstrong, 82 N. C. 327; Bratton v. Davidson, 79 N. C. 423; Clark's Code (3d Ed.) pp. 263, 264; Revisal 1905, § 614; Capps v. Capps, 85 N. C. 408; McMillan v. Reeves, 102 N. C. 550, 9 S. E. 449; Roseman v. Roseman, 127 N. C. 494, 37 S. E. 518; Ledbetter v. Pinner, 120 N. C. 455, 27 S. E. 123; Falson v. Williams, 121 N. C. 152, 28 S. E. 188; Fisher v. Trust Co., 138 N. C. 90, 50 S. E. 592. Indeed, Acts 1887, p. 518, c. 276 (Code, § 255; Revisal 1905, § 614), as above cited, provided that, whenever a cause which was originally brought before the clerk is constituted in the superior court at term by transfer, appeal, orin any other way, that court shall proceed to hear and determine all matters in controversy, with power to remand in its sound discretion, if, by that method, justice can be more speedily and cheaply administered. In re Anderson, 132 N. C. 243, 43 S. E. 649.

Not having had the benefit of an oral argument from the learned counsel who represented the respective parties, which is always desirable, we were somewhat troubled to decide upon the reasons assigned in one of the briefs, whether the proceedings should not be dismissed in this...