Anderson ex rel. Yancy v. Young, 44 N.C. 408, 1 Busb. 408 (1853)

Aug. 1853 · Supreme Court of North Carolina

44 N.C. 408, 1 Busb. 408

V. B. ANDERSON TO THE USE OF J. YANCY vs. A. YOUNG, et al. ADM’RS.

A Justice’s judgment on a warrant against an administrator, ascertaining the amount due, and having endorsed thereon a suggestion of the defendant’s intention to plead “ no assets,” according to Rev. Stat. eh. 46, sec. 25, is not a final judgment, and an action will not lie upon it.

Debt upon a former judgment, rendered by a Justice of the Peace — Pleas—general issue — former judgment.

Upon the trial, before Ellis, Judge, at Yancy, on the last Spring Circuit, the case was as follows : — The plaintiff had obtained a judgment for the amount - of his claim against the intestate of the defendants, who, upon the trial before the magistrate, without contesting the claim, made a suggestion of u no assets,” which was entered by the magistrate on the warrant. The magistrate did not return the papers to the County Court; and the present action was commenced by warrant upon said judgment, and the plaintiff having obtained a judgment on the same, the defendant appealed to the Superior Court. Upon this state of facts', his Honor, the presiding Judge, was of opinion that the action could not be maintained, and in deference to this opinion, the plaintiff submitted to a judgment of nonsuit, and appealed to the Supreme Court.

J. W. Woodfin, for the plaintiff.

N. W. Woodfin and Gaither, for the defendants.

Nash, C. J.

We concur with his Honor in his opinion, the plaintiff is not entitled to a verdict. By the Act of 1836, ch. 56, sec. 25, it is provided that where an executor or administrator shall be warranted, and shall be desirous to avail himself of a want of assets, he may suggest it to the magistrate, who shall endorse it on the warrant, and return the papers to the next term of the County Court, with the judgment, which he is authorised to give. In this case the suggestion was made and endorsed, and a judgment for the amount due by the intestate, given. The magistrate neglected to return the papers to Court, and after some timé, the warrant issued in the present case upon an alleged fof-mer judgment. We agree with his Honor, that no such judgment existed as is set forth in the warrant. A judgment, to au-thorise the action upon it, must be a final one, ascertaining the rights of the respective parties. In this case it was not final. It merely ascertained the amount due from the intestate, but does not ascertain the liability of the defendants to pay. That was a question which the Legislature has not entrusted to a single magistrate. In truth, it could not be well ascertained before such a tribunal. The questions arising in such an investigation, involving, often, an inquiry into the settlement of the whole estate, to ascertain whether the representative has observed the order directed to be observed in its administration, requires the aid and assistance of a jury, and the supervision of a Court duly qualified. The judgment given by the magistrate was not a final one, for no execution could issue upon it; and upon it no warrant can be sustained.

Per Curiam. Judgment affirmed.