43 S.E. 935 | N.C. | 1903
This is an action brought against the defendant administrator for an alleged indebtedness by his intestate to the plaintiff. After suit brought, and without pleading, having (474) been filed, the parties agreed in writing to submit the matter in dispute to arbitration. The Code, sec. 1426. The arbitrators made an award and reported the same to court, and judgment was duly entered thereon. At the next term a distributee of the estate filed a petition to set aside the judgment, and subsequently thereto the arbitrators filed a statement that they had detected an error in the addition of the figures to the amount of $168 and "authorized and instructed the clerk to change their report in making the award $146.44 instead of $314.44." Notice was issued to the parties of the motion to modify and reduce the judgment; and at February Term, 1903, the defendant administrator asked that the judgment be set aside, which the court did upon the ground that it was an irregular judgment. The motion having been made after the trial term and not upon any of the grounds set out in the Code, sec. 274, could only be sustained upon the ground of irregularity. Turner v. Davis, ante, 187. No fraud is alleged, and if there had been it would have been ground for an action and not for a motion in the cause, this being a final judgment. Carter v. Rountree,
But we cannot discover any irregularity in the judgment. The action was pending and the judgment was regularly entered and in due course. *336
The failure to file a complaint was ground to dismiss the action, if objection had been taken in apt time (The Code, sec. 206), but its absence was cured by acquiescence in the judgment. Vick v. Pope,
The submission to arbitration or reference was authorized by The Code, sec. 1426. Lassiter v. Upchurch,
If the award itself has been contested for error in calculation therein, judgment thereon could not have been defeated for alleged mistake, when even this was denied; we have proceeded beyond that, for the award has passed into a solemn judgment of a court of competent jurisdiction. For the same reason, it is too late now to contest that the arbitration not having been made a rule of court, judgment should not have been entered upon it. Metcalf v. Guthrie,
Upon the findings of fact, the judgment setting aside the former judgment must be
Reversed.
Cited: Rawls v. Mayo,
(477)