Tyer v. J. B. Blades Lumber Co

• Decision Date: 01 October 1924
• Docket Number: (No. 19.)
• Citation: 124 S.E. 305
• Parties: TYER . v. J. B. BLADES LUMBER CO.
• Court: North Carolina Supreme Court

124 S.E. 305

TYER .

v.J. B. BLADES LUMBER CO.

(No. 19.)

Supreme Court of North Carolina.

Oct. 1, 1924.

(188 N.C.)

Appeal from Superior Court, Beaufort County; Brown, Judge.

Petition by the J. B. Blades Lumber Company to revoke letters of administration granted to Asbury Tyer on the estate of Irving Tyer, deceased. From a decree dismissing the petition, petitioner appeals. Affirmed.

See, also, 124 S. E. 306.

Petition to revoke letters of administration issued to the plaintiff by the clerk of the superior court of Beaufort county, heard by Brown, J., upon appeal from the clerk's order. The plaintiff brought suit to recover damages for the alleged negligent killing of his intestate while operating a saw in the defendant's mill. The complaint and answer were duly filed. Thereafter the defendant made a motion before the clerk of the superior court of Beaufort to vacate and set aside the plaintiff's letters. The plaintiff filed an answer to the petition and at the hearing the clerk heard evidence from which he found the following facts:

(1) That Irving Tyer was killed on Friday, August 11, 1922, while working in the sawmill of the J. B. Blades Lumber Company, at Bridgeton, N. C. That at the time of his death the said Irving Tyer was living in a cottage on the mill premises of the J. B. Blades Lumber Company, which said cottage was rented to him by the J. B. Blades Lumber Company, while he worked at said mill. That the said Irving Tyer had four minor children who were living with him in said cottage. That at the time of his death the wife of the said Irving Tyer, Annie Jordan Tyer, was not living with the said Irving Tyer, but was residing in the city of Philadelphia, state of Pennsylvania; that the said Annie Jordan Tyer had not resided with her husband and children for several years prior to the death of the said Irving Tyer.

(2) That on the 21st day of September, 1922, Asbury Tyer, a brother of the deceased, Irving Tyer, duly qualified as administrator of the said Irving Tyer before the clerk of the superior court of Beaufort county, N. C, giving the necessary and required bond, and promptly thereafter instituted an action for damages against the J. B. Blades Lumber Company for the wrongful death of his intestate.

(3) That at the time of the death of the said Irving Tyer, the said Irving Tyer was domiciled in Beaufort county, and did not at any time change his domicile from said county to any other county; that the said Irving Tyer was temporarily working in Bridgeton, N. C, and had his children with him at said time, but intended to retain his domicile in Beaufort county and to return to Beaufort county as the place of his domicile. That at the time of his death the said Irving Tyer had part of his personal effects, including his cooking stove, in Beaufort county. That the said Irving Tyer had often explained his absence from Beaufort county as being for a temporary purpose, and frequently stated that he intended to retain his domicile in Beaufort county. That the said Irving Tyer preferred to work in and around mills and gins, to working in crops, and at certain seasons of the year when he could not obtain work in mills and gins temporarily worked in Bridgeton, N. C., for the J. B. Blades Lumber Company and others, but always with the intention to return to Beaufort county.

The judgment was as follows:

From the foregoing findings of facts it is ordered, adjudged, and decreed by the court that the said Irving Tyer was domiciled in the county of Beaufort at the time of his death, and that letters of administration upon the estate of said Irving Tyer are duly and properly issued to the said Asbury Tyerby the clerk of the superior court of Beaufort county, and it is therefore ordered, adjudged, and decreed that the petition to revoke the said letters of administration be dismissed, at the cost of the petitioner, J. B. Blades Lumber Company. This, the 1st day of October, 1923.

The defendant excepted, and upon appeal Judge Brown adopted the clerk's findings of fact and affirmed his judgment. The defendant excepted and appealed to this court.

O. H. Guion, of Newbern, for appellant.

Ward & Grimes, of Washington, N. C., W. A. Thompson, of Aurora, and Harry McMullan, of Washington, N. G.,...