Turner v. . Rosenthal

21 S.E. 198 | N.C. | 1895

We find no error in the ruling of his Honor. The defendant in this action was not a party to the suit in Wake County between the plaintiff and Mrs. Holden and Sherwood, the administrator of Holden. And also, while it appears from the complaint and answer that the plaintiff in this action still alleges as a matter of liability against the defendant, his negligent and willful failure to subject the United States bonds mentioned in the suit in Wake County to the satisfaction of the plaintiff's judgment against Holden, yet he does not confine himself to that allegation. When his complaint is examined from the most liberal view under the Code practice, it will appear most probably that he alleges in substance that there was other property of the judgment debtor, besides the bonds, that could have been reached by the defendant as receiver. Temple v. Williams, 91 N.C. 82; Williams(441) v. Clouse, ib., 322. It was in this light, no doubt, that his Honor viewed the pleadings and refused to allow the plea of estoppel set up by the defendant in his amended answer; for if it be admitted that the only material matter involved in the action in Wake Superior Court, and in the present one, was as to the title of the United States bonds mentioned in the amended answer, and whether or not the defendant should have subjected them to the satisfaction of the plaintiff's judgment, why, then, the plaintiff is estopped, because in an action wherein he was a party the title to the bonds was held to have been in Mrs. Holden and not in her deceased husband, the judgment debtor. McElwee v.Blackwell, 101 N.C. last paragraph on page 192. In this last mentioned case the Court suggest the best way to make the defense of another judgment, for the same cause of action available. There is no merit in the plaintiff's exception.

The judgment below is

Affirmed.

Cited: Scott v. Life Asso., 137 N.C. 520.

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