State ex rel. Bond v. Billups, 53 N.C. 423, 8 Jones 423 (1862)

June 1862 · Supreme Court of North Carolina

53 N.C. 423, 8 Jones 423

State on the relation of R. H. L. BOND v. JOS. E. BILLUPS, Adm'r.

In an action against an administrator, on his administration bond, for the non-payment of a judgment previously rendered against him, such judgment is conclusive evidence against him, both as to the debt and the existence of assets.

This was an action of debt on an administration-bond, tried before Heath, J., at the Spring Term, 1861, of Perquimons Superior Court.

The action was originally brought in the County Court, and the writ was taken out against the defendant,. Billups, and the sureties to the administration bond, but the record states that only the defendant came and pleaded, and he only appealed to the Superior Court.

The plaintiff offered in evidence a judgment, which had been recovered against the defendant, as administrator of one T. Billups, at May Term, 1860, of Perquimons County Court; the non-payment of which judgment, was the breach of the bond declared on.

The defendant pleaded fully administered and no assets at the time of-the original judgment and. fully administered and no assets in thi§ suit. And on the trial, he offered to show "'that at the time of the judgment in the county court, at May Term, 1860, he had paid all the assets- of his testator upon debts of equal dignity with that of plaintiff, and further, he offered to show that he had no assets- of his testator at the time of the commencement of this suit. His Honor excluded the evidence, and the defendant’s- counsel excepted.

Yerdict and judgment for plaintiff,, and appeal by the defendant.

Winston, Jr., for plaintiff.

No counsel for defendant in this Court:.

Battle, J.

The case'of Armstead v. Harromond, 4 Hawks’" Rep. 339, is a direct authority in support of the opinion expressed by his Honor in the Court below. That was a suit upon an administration bond against the administrator and his-sureties, and although it was held that a previous judgment against the adminisirator, in which he was fixed with assets, was not evidence against his sureties, as to the assets, yet it was evidence against him, both as to the debt and assets. That the j udgment against the administrator is conclusive, appears as well from that case, as from the recent one of of Strickland v. Murphy, 7 Jones, 242. Whether it was so as against the sureties, we need not enquire, for in the case -now before us, they were not parties to the record in the Superior Court. It is true, that in the county court the writ had been issued against and served upon them, but they did not appear and plead, and the judgment in that Court was rendered against the administrator alone, from which he apappealed, and was, of course, the only party defendant to the record in the Superior Court. The evidence which he offered for the purpose of showing that at the time of the previous judgment against him, he had fully administered all the assets which had come into his hands, Was, therefore, properly rejected, and the judgment must be affirmed.

Per Curiam,

Judgment affirmed.