Haywood v. Coman & Administrators of Hunter, 5 N.C. 106, 2 Car. L. Rep. 106 (1815)

Jan. 1815 · Supreme Court of North Carolina

5 N.C. 106, 2 Car. L. Rep. 106

Haywood v. Coman & the Administrators of H. Hunter dec.

This was a petition on the equity side of the court, to set aside an interlocutory order, made at April term, 1813, whereby the administrators of H. Hunter, were allowed to file their answer to the complainant’s bill of complaint. The bill was served on the intestate, who neglected to answer, and the cause was set for hearing in his lifetime, at April term, 1810, after which he died, and his administrators were made parties at April term, 1811, before which time the complainant had completed his depositions, with notice to the other defendant, Coman, but without any to Hunter. At the term when the administrators were made parties, they offered to file their answer, but were not allowed to do so by the court. At the before mentioned term, of April, 1813, the motion to file their answers was again renewed, and allowed by the court; and this is the order complained of. The defendants, in their answers, state, that the intestate, for, a considerable time previous to his death, was reduced by, intemperance to such a state of mental and corporeal debility, as unfitted him for business.

By the Court.

—The facts disclosed in the answer of the administrators of Hunter, were sufficient to warrant the court below in setting aside the order (entered according to the usual practice) for taking judgment pro confesso against him; and receiving their answer. The complainant’s petition, praying a reversal of that order, and that the answer of the administrators be suppressed is disallowed and dismissed.

Justice to the complainant, however, requires, that he should have the benefit of the testimony taken without notice to Hunter, while the judgment pro confesso was in force against him—as during that period, the complainant was under no legal obligation to give notice to him of the time and place of taking his depositions.

Let the cause be remanded with the following order and directions to the court below, viz....that the answer of the defendants, administrators of Henry Hunter, stand according to the order made for receiving it—that the complainant have the benefit of the testimony taken without notice to Hunter, in his lifetime, saving all just exceptions thereto.