Opinion
December Term, 1825.
The distributees of A. filed a petition against the administrator of A., and charged in the petition that B., one of the children of A., had been advanced by his father in his lifetime, and made him a defendant in the petition. In the county court a jury found that B. had been advanced. B. removed the proceedings by certiorari to the Superior Court, where, after reference to the clerk of the matters of account, the suit as to the petitioners was settled and disposed of; and so much of the case as related to the advancement of B. was referred to arbitrators, who decided that B. was entitled to receive a certain portion of his father's estate; and when this award was returned, on motion judgment was rendered for the sum stated to be due, in favor of B. against the administrator, without objection: Held, that the circumstances under which the judgment was rendered were such as made the judgment substantially just, as much so as if B. had been one of the petitioners instead of a defendant; and as B. had issued a sci. fa. to the administrator on this judgment, if the administrator had any substantial plea he might urge it against the sci. fa.
THE distributees of James Dozier, deceased, filed a petition in CURRITUCK against Mitchell Simmons, as administrator of Dozier, for their shares of the estate. The petition stated that Enoch Dozier (who was the plaintiff in this proceeding) was one of the distributees, and had been advanced by James Dozier in his lifetime, and he was made a defendant in the petition. Enoch Dozier, in his answer, denied the advancement; and Simmons, in his answer, expressed his readiness to pay the estate to whomsoever the court might direct. In (27) the county court an issue was submitted to a jury as to the advancement of Enoch Dozier, who found that he had received by way of advancement $524.60.
(29) L. Martin for defendants.
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 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 of nul 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 scire facias; 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.