Wood v. Watson

• Citation: 12 S.E. 49,107 N.C. 52
• Parties: WOOD et al. v. WATSON et al.
• Decision Date: 27 October 1890
• Court: United States State Supreme Court of North Carolina

12 S.E. 49

107 N.C. 52

WOOD et al. v. WATSON et al.

Supreme Court of North Carolina

October 27, 1890

Appeal from superior court, Bertie county; WOMACK, Judge.

A judgment for a defendant who at the time of its rendition is dead, which fact is then unknown, is not for that reason void, and plaintiff's motion to set it aside on that ground is properly denied.

D. C Winston, for plaintiffs.

DAVIS J.

At the fall term, 1889, of the superior court of Bertie county, in an action by the plaintiffs v. George Watson, the ancestor of the present defendants, judgment was rendered in favor of the defendant Watson against the plaintiffs. The following is the case on appeal: This was a motion heard before WOMACK, J., at February term, 1890, of Bertie superior court, to set aside a judgment herein rendered at fall term, 1889, of said court which is set out in the record, upon the following facts ascertained and found by the court: That at the time of the rendition of said judgment in favor of George Watson, he, the defendant, had for several months been dead, which fact was then unknown; that plaintiffs gave notice of appeal from said judgment, but upon hearing of the death of George Watson took no steps to perfect the same, but caused notices to issue to the present defendants, who are the widow and heirs at law of George Watson, of a motion to set aside said judgment, on the ground that at the time of the rendition of the same George Watson was dead. The defendants entered a special appearance, and resisted the motion upon the following grounds: (1) That it was the duty of the plaintiffs to suggest the death of the defendant, and not having done so, they are bound by the judgment; (2) that the defendants are the only parties who had the legal right to move to set aside the said judgment, which they elect not to do. The motion to set aside said judgment was refused, from which refusal the plaintiffs appealed. Was the judgment in favor of Watson, the dead defendant, against the living plaintiffs void or voidable at the instance of the plaintiffs? We find many cases, and some conflict of decisions, in which judgment was rendered in favor of plaintiffs against deceased defendants, but our researches have not enabled us to find any in which judgment was rendered in favor of the defendant after his death, against the living plaintiff. In Kelly v. Hooper's Ex'rs, 3 Yerg. 395, and in Carter v Carriger, Id. 411, it was held that a judgment against a dead man was an absolute nullity. In Holmes v Honie, 8 How. Pr. 384, it was held that a judgment after the death of a party may be stricken out, and the same was held in Lockridge v. Lyon, 68 Ga. 137. It was also held by this court in Lynn v. Lowe, 88 N.C. 478, (RUFFIN, J., dissenting,) that a judgment rendered against a party after his death is irregular, and may be set aside, to the end that the representative of the deceased defendant may have an opportunity to resist a judgment. In Knott v. Taylor, 99 N.C. 511, 6 S.E. Rep. 788, it was held that a judgment rendered against a dead person, the fact of his death being unknown to the court or the plaintiff, was not void, but irregular and voidable. We refer to the interesting discussion in Lynn v. Lowe, supra, and to the authorities there cited, as to the effect of a judgment rendered against a defendant who died before its rendition. In Freeman on Judgments, § 140, it is said: "If jurisdiction be obtained over the defendant in his lifetime, a judgment rendered against him subsequently to his death is not void;" again, section 153: "Judgments for or against deceased persons are not generally regarded as void on that account;" and this view of the law seems to be in accord with the current authorities upon the subject, though, as has been said, there is want of unanimity in the adjudications, and in this state it may be regarded as settled that the death of a party defendant to an action before trial should be suggested, and the proceedings suspended, until the real or personal representatives, as the case may be, can be made parties, and the action continued against them, and if this be not done, and the plaintiff takes judgment against a dead defendant, it may be set aside. Lynn v. Lowe, 88 N.C. 478; Knott v. Taylor, 99 N.C. 511, 6 S.E. Rep. 788, and cases there cited. In Lynn v. Lowe, the late chief justice said: "It was obviously the plaintiff's duty, to prevent an abatement of their action, to bring the fact of the defendant's death to the notice of the court, and to make the other necessary parties in consequence thereof, in order to proceed with the cause. It could not be the duty of any other, since the event that sealed the lips of the deceased recalled the authority of his attorney longer to represent him." There is a manifest reason why a judgment against a dead man may be avoided...