The judgment in this case is erroneous and void in law: let it be reversed and the plaintiffs in error, be restored to1 all things which they have lost thereby, and the defendants in error pay the costs.
Colson's Executors v. Wade's Executors, 5 N.C. 43, 1 Mur. 43 (1805)
June 1805
·
Supreme Court of North Carolina
5 N.C. 43, 1 Mur. 43
Colson’s Executors vs. Wade’s Executors
from Fayetteville.
After juog-fauUk be-'vrit of ?n-qinry, the defendant plaintiff ex. w.°it or'en-flui;7 mentis ren-favour — S *44roneóos & veve-T-’ writ r°r-
*43This was a writ of error brought to reverso a judgment recovered by Thomas Wade against John Colson and others in Anson county court, in the year 1782. The facts were, that Thomas Wade sued out an original attachment against John Colson. Isaac Fortenberry anti others, returnable to the county court of Anson : which attachment being levied and returned* and the deíendanís (ailing to appear and re-plevy the property levied on, judgment bj default was en • terrd against them at July term. 1782, and a writ of enquiry awarded. On the first day of August, 1782, Isaac Forten-berry, one of the defend an Ip, died, aiul at October .term of the same year, the writ of enquiry was executed; the plaintiff's' damages were assessed and judgment rendered against the *44defendants. The error assigned was that before the giving' °f the said judgment, Isaac Fortenberry, one of the defer.^ants died, and the judge having found that he died in A Ti-gust, 1782, subsequent to the judgment by default,' but before the rendering of the final judgment upon the execution ^ie wl'^ °f enquiry, the case was sent to this court upon the question, ‘‘ whether the said judgment was erroneous and ought to be reversed l”