McLaughlin v. McLaughlin, 47 N.C. 319, 2 Jones 319 (1855)

June 1855 · Supreme Court of North Carolina

47 N.C. 319, 2 Jones 319

ARCHIBALD McLAUGHLIN vs. JOHN J. McLAUGHLIN et al.

Where upon the appearance of an insolvent at the County Court, a suggestion of fraud is made, but no specifications are filed in that Court, Held that the cause was not in a state to he carried to the Superior Court by appeal, certiorari or otherwise.

MotioN for judgment on a ca. sa. bond, heard before his Honor Judge Person, at the Special Term of Eobeson Superior Court, May, 1855.

At February term, 1854, of Eobeson County Court, the following is the entry in this case : “ Defendant not allowed to take the oath ; fraud suggested. Transferred to the superior court.” This transfer was intended to be in pursuance of an Act of Assembly passed in 1850, concerning the County Court of Eobeson. There were no specifications of fraud filed in the County Court, but specifications were filed in the Superior Court, at spring term, 1854, and the cause was continued till this term when, the defendant not appearing, a motion was made for judgment by default against him and his sureties. The motion was opposed, on the ground, that the cause had beep sent to the Superior Court prematurely, not having been put at issue ; and his Honor being of that opinion, ordered it to be dismissed, from which j udgment plaintiff appealed.

Shepherd, for plaintiff.

Troy, for defendant.

Battle, J.

The question which has been discussed before us, and decided at the present term in Thompson v. Floyd, (ante 313) does not arise in this case. Here no issue was, nor as matters then stood, could have been made up when the cause was transferred to the Superior Court. The 10th section of the Revised Statutes ch. 58, entitled “An Act for the relief of insolvent debtors,” provides that when a debtor, after having taken the necessary preliminary steps, applies to the county court for permission to take the benefit of the act, any creditor may suggest fraud : whereupon the court shall direct an issue to be made up and tried by a jury. The Act of 1844, ch. 31, sec. 2, (Ire. Dig. Man. p. 118,) prohibits the court from permitting such an issue to be made up and tried, unless the creditor, his agent or attorney, shall file his suggestions of fraud in writing. .

From the record it appears that no suggestions were filed, and no issue made up until the cause was docketted in the Superior Court. It was not therefore,while in the County Court, in a condition to be taken, to the Superior Court by way of appeal, writ of certiorari, or otherwise, and his Honor did right in dismissing it for want of jurisdiction.

PeR CueiaM. The judgment is affirmed.