Johnston v. Davis, 70 N.C. 581 (1874)

Jan. 1874 · Supreme Court of North Carolina

70 N.C. 581

THOS. L. JOHNSTON v. M. L. DAVIS, Adm’r., &c.

Tie Superior Courts, in term time, have, under the Act of 187S-73, chap. 175, jurisdiction of actions by creditors against Administrators.

(Bell v. King, ante 330, cited and approved.)

Civil ACTION, for the recovery of a Justice’s judgment, tried upon a demurrer to the' complaint, before his Honor, Judge Moore, at the Special (July) Term, 1873, of MeceleNbubg Superior Court.

The facts pertinent to the point decided are fully set forth in the opinion of the Court.

His Honor overruled the demurrer, and defendant appealed.

Wilson <& Son, for appellant.

Jones & Johnston, contra.

RodMAN, J.

The facts, so far as they are necessary for an understanding of the questions presented, are as follows :

The action was brought in the Superior Court before the Judge at Fall Term, 1872, on a summons dated August 9th, 1872, by the plaintiff, on behalf of himself and all others, creditors of one Harris., alleging, that Harris died intestate in 1865, and chat the defendant became his administrator in 1865; that the defendant received personal property, and sold the land and received the proceeds; that plaintiff is a creditor by virtue of a judgment obtained against the administrator before a Justice in 1872. Plaintiff asks an account and payment. Defendant demurs for want of jurisdiction in the Court, and contends that the action should have begun before the Probate Judge.

It will be seen that this action was begun before the passage of the act of 1872-’3, chap. 175, ratified March, 3, 1873, (not to be found in Battle’s revisal.)

Several eases decided at this term, Bell v. King, ante 330, hold. that however the law might have been independent of that act, it cures any defect of jurisdiction, and allows it to the Superior Court in term time.

Peb CubiaM. Demurrer overruled and case remanded.