12 N.C. 315 | N.C. | 1827
A writ issued in the name of "A. Nesbit Co.," (316) plaintiff, against "Jesse A. Pearson and Elizabeth Pearson, executor and executrix of Richmond Pearson," defendants, returnable to Fall Term, 1820, of Rowan Superior Court, when judgment was confessed thereon by the defendants. Execution issued on this judgment, and was continued until Spring Term, 1823, when a return of nulla bona testatoris was made. After the confession of the judgment (the case did not state when) Jesse A. Pearson died. A scire facias on the judgment issued at the instance of Nesbit, as surviving partner, to subject the present plaintiff de bonis propriis.
At Fall Term, 1827, the present plaintiff, one of the original defendants, filed an affidavit stating that Jesse A. Pearson was both plaintiff and defendant in the first action; that she never had received any of the assets of Richmond Pearson, and moved (1) for a writ of errorcoram nobis; and if the matter assigned was not error, then (2) to set aside the judgment confessed by her and Jesse A. Pearson. The defendant pleaded (1) in nullo est erratum; (2) that if there was error, it was waived by the confession of the judgment.
On the last circuit, before his Honor, Judge Strange, an order in the alternative was made whereby the judgment was reversed for error, if errorcoram nobis was proper; but if not, then the judgment was vacated. Upon which Nesbit appealed. A suit at law is a contest between two parties in a court of justice, the one seeking and the other withholding the thing in contest. The same individual cannot be *202 at the same time both the person seeking and the person withholding; for it involves an absurdity that a person should seek from himself, or withhold from himself. Between a (317) corporation and the individuals composing it the identity does not exist, and the absurdity above stated is avoided; but where the same person is both plaintiff and defendant, in different rights, as for himself on the one side and as executor on the other, this absurdity is involved. When adversary rights, as creditor and executor, or debtor and executor, meet in the same individual, the law considers the contest as settled — at least as long as the union exists. As soon, therefore, as it appears to the court that the same individual is both plaintiff and defendant, any judgment entered up in the cause is, to say the least, erroneous, and should be reversed.
I am not prepared to say whether a writ of error or a motion to vacate is the most proper mode of proceeding in this case; but I am satisfied that a writ of error is a proper remedy, although it may not be the only proper one.
The judgment of the Superior Court reversing the original judgment must be affirmed.
PER CURIAM. Judgment of reversal affirmed.
Approved: Justices v. Armstrong,