Royster v. Wright

• Decision Date: 19 May 1896
• Citation: 24 S.E. 746,118 N.C. 152
• Parties: ROYSTER v. WRIGHT.
• Court: North Carolina Supreme Court

24 S.E. 746

118 N.C. 152

ROYSTER v. WRIGHT.

Supreme Court of North Carolina

May 19, 1896

Appeal from superior court, Edgecombe county; Boykin, Judge.

Action by F. S. Royster, administrator, against M. O. Wright executrix. From a judgment for defendant, plaintiff appeals. Reversed.

An executrix, on filing the final account of her testator as administrator, moved for the allowance of commissions due her testator; and, subsequently, on December 4, 1894, counsel of plaintiff (who opposed the motion) and defendant's counsel agreed to continue the matter to a date to be agreed on between them. No date was ever agreed on, and plaintiff being dissatisfied with the account, on February 9, 1895 sued to impeach it. On February 23, 1895, the clerk, at the instance of defendant's counsel, notified the parties that he would on March 4, 1895, resume the hearing of defendant's motion, and requested to be informed of the items on which no commissions should be allowed. At this hearing plaintiff and his counsel failed to attend, and on March 13th the clerk entered judgment allowing the commissions. Held, that the suit was notice to the clerk that plaintiff would pursue his remedy under the Code, and the judgment was void.

H. G. Connor and Staton & Johnston, for appellant.

Shepherd & Busbee and Gilliam, Parker & Munroe, for appellee.

FAIRCLOTH C.J.

This action is brought by the plaintiff, administrator d. b. n. c t. a. of O. C. Farrar, against the defendant, the executrix of George B. Wright, the original executor of said Farrar, for an account and settlement of the estate of Farrar. The original executor filed some annual returns of his administration with the clerk, and the defendant executrix filed a final return on the 21st of November, 1894, and it appeared that the defendant had been allowed $11,500 as commissions. The executrix moved for the allowance of commissions due her testator, before the clerk, which we understand to be in addition to those already allowed; and counsel of the parties voluntarily met before the clerk on the 4th of December, 1894, and entered into some discussion as to the items "on which a commission in law is not to be allowed. It was thereafter agreed between counsel that the matter should stand continued to some date to be agreed upon by the parties." No other date was ever agreed upon, and neither the plaintiff nor his counsel attended any other meeting or conference. On February 23, 1895, at the instance of defendant's counsel, the clerk issued a notice to the parties that on the 4th of March, 1895, he would resume consideration of the application of the executrix for the allowance of commissions to her testator, with a request to the parties to indicate the items on which commissions should not be allowed. The plaintiff failed to attend, nor did his counsel attend; and on March 13, 1895, "after careful examination of the several accounts filed," the clerk allowed certain commissions, and rendered judgment, in the absence of the plaintiff and his counsel, in favor of the defendant executrix, against the plaintiff, for $3,187.27 and interest from the 22d of November, 1894. The plaintiff, being dissatisfied with the account filed on February 9, 1895, instituted this action to have an account of the administration stated, and to impeach the accounts filed, and for a reference (Code, § 1511), and filed his complaint. The defendant, answering the complaint, pleaded specially that the accounting and judgment of the clerk above set out are a bar to the plaintiff's cause of action. At the trial term the motion for a reference was denied, the court being of opinion that the plea in bar was to be first tried. The motion was heard by the court upon an inspection of the pleadings and the clerk's record above recited, and "said motion was refused as to all matters and things adjudicated by the clerk, *** the court...