Cowan ex rel. Shuford v. McNeely, 32 N.C. 5, 10 Ired. 5 (1848)

Aug. 1848 · Supreme Court of North Carolina

32 N.C. 5, 10 Ired. 5

JAMES COWAN TO THE USE OF GEORGE M. SHUFORD v. AMOS McNEELY.

A suit was peuding on a note executed by A. tj- B. B. liad died and A. administered on his estate, and the suit was against him personally aud as administrator. The following order was made: “Referred to (C. §• D.) to take an account of the estate of (B.) and to award, and, if they cannot agree, to choose au umpire, and their award to be a rule of Court.” Tire referees returned the following award: “This cause having been referred to us to take an account of the administration of the said (A.,) and to make an award in the matters in controversy, we find, in taking the said accouut, that the amount of vouchers in the hands of the said (A.) exceeds the amount of receipts, with which he is chargeable, by the sum of $513 C2, #c. Finding, therefore, that the administrator has no assets, we award that the plaintiff pay the costs of this suit.”

Held, that the only matter submitted to the referees was the amount of Ufa assets of (B.) in the hands of (A.,) and that their award as to any other or further matters was void.-

Appeal from the Superior Court of Law of Iredell County, at the Spring Term 184G, his Honor Judge Caldwell presiding.

The case is : McNeel}', the defendant, executed a note-to the plaintiff and signed it, “McNeely & Rumple.'-’ Rumple died, and McNeely and Joseph Rumple administered on his estate. The action is brought on the note against McNeely in his own right, and against him and Joseph Rumple as administrators of Eli Rumple, the deceased. In the progress of the case, while pending in the County Court, the following order was made : “Referred to James E. Kem and Jury Clark, to take au account of the estate of Rumple, and to award, and, if they cannot agree, to choose an umpire, and their award to be a rule of Court." The referees returned into Court the following award: “This cause having been referred to us to take an account of the administration of said McNeely, and to make an award in the matters in controversy, we find, in taking the said account, that the amount of vouchers in the hands of said McNeely exceeds the amount of receipts, with which lie is chargeable, by the sum of $51S 62, the further amount of $675 18 having been paid by said administrator upon unliquidated accounts, and, therefore, not admitted as vouchers in this suit. Finding, therefore, that the administrator has no assets, we award, that the plaintiff pay the costs of this suit.” This award was set aside in the County Court, from which judgment the defendant appealed, and, in the Superior Court, the presiding Judge was of the opinion, “that the submission was confined to the liability of the defendants, McNeely and Rumple, as administrators, upon the plea of fully administered, and that the personal liability of McNeely was not referred or included in the award, and so considering, the'decision of the County Court was ordered to be reversed, and judgment entered according to the award, in favor of the said administrators, leaving the personal liability of said McNeely subject to further trial.” The defendant McNeely appealed to this Court.

Craig', Avery and Thompson, for the plaintiff.

Clarke, for the defendants.

Nash, J.

In the Superior Court the motion of the defendant,in substance, was for a judgment upon the award, upon the ground, that the award had decided that he was not bound to pay the debt. This motion the presiding Judge refused, because, by the submission, the arbitrators had no power to enquire into his personal responsibility. Though the order was very loosely drawn, we agree with his Honor. That question was not within the order of reference, and therefore, there was nothing, upon which the defendant could ground his motion. His Honor was correct in reversing the judgment of the County Court, setting aside the award. They had no power to do so. The parties were entitled to the benefit of it, as far as it was legally made. The Court having refused to render judgment for the defendant on the award, left the case for trial as in any other case. We do not concur in the opinion, giving judgment at that time for the administrators upon the award, and leaving the case, as to Mc-Neely’s personal liability, to be tried thereafter. There cannot be a final judgment upon one part of a case at one time, and upon another part at a different lime. This question, however, is not directly before us, and we affirm the judgment in the Superior Court, refusing the motion of the defendant, because the Court had no power or authority to grant if, for the reason it gave. Let this opinion be certified to the Court below.

Fur Cltriam.

Ordered accordingly.