11 N.C. 26 | N.C. | 1825
Afterwards, Enoch Dozier obtained a certiorari, and the proceedings were thereby removed into the Superior Court, where it was referred to the clerk to take a general account of James Dozier's estate, and when the account was taken Simmons handed in his vouchers and they were allowed. There was no dispute as to the claim of the petitioners; and after the report of the clerk the matter as to them was settled, and so *12 much of the case as related to Enoch Dozier's interest in his father's estate was referred to arbitrators, who decided that Enoch Dozier was entitled to $282.67. When this award was brought into court, on motion, a judgment was rendered for that sum in favor of Enoch Dozier against the administrator of James Dozier.
There was no petition or cross bill filed by Enoch Dozier to have the benefit of the award before judgment was entered for the amount. On this judgment in favor of Enoch Dozier a fi. fa. issued against the goods and chattels of James Dozier in the hands of Simmons, his administrator, to which the sheriff returned that there was nothing to be found. Enoch Dozier then issued a sci. fa. to the executors of Simmons, who had died, calling on them to show cause why execution should not issue against the proper goods and chattels of Simmons; to this sci. fa. the defendants pleaded nul tiel record, with several other pleas, all of which were found by the jury in favor of Enoch Dozier; and on the plea ofnul tiel record, the court, Daniel J., presiding, was of opinion that there was a judgment of record as the sci. fa. alleged; and although the entering up of the same had been somewhat irregular, yet it was not (28) to be avoided by the present plea.
The defendant then asked leave to file a petition to vacate or set aside the judgment, which the court refused, and gave judgment that Enoch Dozier have execution against the proper goods and chattels of Simmons in the hands of the defendants, whereupon defendants appealed. I think the circumstances under which this judgment was entered were as favorable to both parties and answered the ends of justice between them as well as if the person to whom the judgment was confessed had been one of the petitioners. 'Tis true, he was a defendant in the original proceedings; but the subject-matter of the petition had, by consent, been referred, and when the award was returned the present defendant's intestate agreed that judgment should be entered against him for the amount awarded in his favor, and no objection was made by any of the parties interested in the distribution of the estate. I can see no objection to the judgment, more than if it had been confessed by the defendant in a more formal manner at any other time. If the present defendant has any plea to enter in his representative character, he might have done so on the return of the scirefacias; but I think he is bound by the judgment confessed by his intestate, and that the judgment of the Superior Court should be
Affirmed.
The other judges assenting. *13