Rose v. Patterson, 104.
| Decision Date | 24 September 1941 |
| Docket Number | No. 104.,104. |
| Citation | 220 N.C. 60,16 S.E.2d 458 |
| Court | North Carolina Supreme Court |
| Parties | ROSE. v. PATTERSON. |
Appeal from Superior Court, Buncombe County; Wm. H. Bobbitt, Judge.
Action by Henry Rose against M. K. Patterson to enforce liability against defendant for a debt of A. S. Patterson, deceased, to the extent of the value of property received by defendant from deceased. From a judgment of nonsuit, plaintiff appeals.
Affirmed.
Civil action to enforce liability against defendant for debt of A. S. Patterson, deceased, to the value of property received by defendant from decedent. From judgment of nonsuit entered at the close of all the evidence, plaintiff appeals, assigning error.
Parker, Bernard & Parker, of Asheville, for plaintiff, appellant.
Edwards & Leatherwood, of Bryson City, and Jones, Ward & Jones, of Asheville, for defendant, appellee.
In this action the plaintiff seeks to hold the defendant personally liable for his claim against the estate of A S. Patterson, deceased, to the extent of property received by the defendant from the decedent. C.S. § 59 et seq. The character of the action was considered on two former appeals, reported in 218 N.C. 212, 10 S.E.2d 678, and sub.nom., Thomasson v. Patterson, 213 N.C. 138, 195 S.E. 389.
The evidence on the trial, if inculpatory at all, points only to a devastavit on the part of the defendant as executrix of the estate of A. S. Patterson, deceased, and not to any personal enrichment at the expense of creditors. The nonsuit is jus-titled on the ground of a variance between the allegation and the proof. State v. Jackson, 218 N.C. 373, 11 S.E.2d 149, 131 A.L.R. 143; State v. Franklin, 204 N.C. 157, 167 S.E. 569; State v. Harbert, 185 N.C. 760, 118 S.E. 6. "The parties must allege their cause of action or defense, and prove the same on the trial, and a variance arises when the evidence offered does not correspond with the allegations of the pleading." Mcintosh, Practice and Procedure, 517.
The refusal to remove the case to Swain County for trial was upheld on the allegations of the complaint. 218 N.C. 212, 10 S.E.2d 678. The case is to be tried on the pleadings. Green v. Biggs, 167 N.C. 417, 83 S.E. 553; State v. George, 188 N.C. 611, 125 S.E. 189, and cases there cited.
Affirmed.
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