{
  "id": 8651841,
  "name": "J. M. MONGER, Administrator, v. J. M. KELLY et al.",
  "name_abbreviation": "Monger v. Kelly",
  "decision_date": "1894-09",
  "docket_number": "",
  "first_page": "294",
  "last_page": "295",
  "citations": [
    {
      "type": "official",
      "cite": "115 N.C. 294"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "104 N. C., 547",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8651806
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/104/0547-01"
      ]
    },
    {
      "cite": "82 N. C., 137",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8682465
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/82/0137-01"
      ]
    },
    {
      "cite": "108 N. C., 24",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8649633
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/108/0024-01"
      ]
    },
    {
      "cite": "94 N. C., 755",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8651997
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/94/0755-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 183,
    "char_count": 2351,
    "ocr_confidence": 0.544,
    "pagerank": {
      "raw": 4.03580807328026e-08,
      "percentile": 0.20760109952356295
    },
    "sha256": "23626299f73311cf487b564f9cbc2438878df11720c3c63935ab3569fb6cea22",
    "simhash": "1:967b697f6aeff238",
    "word_count": 418
  },
  "last_updated": "2023-07-14T20:29:52.252220+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "J. M. MONGER, Administrator, v. J. M. KELLY et al."
    ],
    "opinions": [
      {
        "text": "Clark, J.:\nThe first and second grounds of demurrer have been removed by the amendment \u00f3f the summons and complaint. The oral suggestion of counsel here that one of these amendments was made without his knowledge, and that no order for it appears in the record, cannot avail him. We are bound by the record, and upon the maxim omnia presumuntur rite acta we must take it that the amendment was regularly made below. But if there was any inadvertence in that regard, the Court could allow the amendment to be made here. The Code, \u00a7 965; Grant v. Rogers, 94 N. C., 755; Hodge v. Railroad, 108 N. C., 24.\nThe third ground of demurrer is without merit. It is not requisite to show that the bond of the first administrator had been sued and exhausted. This would be to unconscionably delay the creditors of the estate who are entitled to be paid. The petition is sufficient in law. Shields v. McDowell, 82 N. C., 137; Brittain v. Dickson, 104 N. C., 547.\nNo Error.",
        "type": "majority",
        "author": "Clark, J.:"
      }
    ],
    "attorneys": [
      "Messrs. Black & Adams, for plaintiff.",
      "Mr. Thomas B. Womack, for defendants (appellants)."
    ],
    "corrections": "",
    "head_matter": "J. M. MONGER, Administrator, v. J. M. KELLY et al.\nAppeal \u2014 Record\u2014Errors not Apparent on the Record \u2014 Sale of Land for Assets \u2014 Sufficiency of Petition.\n1. Where the record on appeal shows that a complaint was amended, and it is suggested by counsel in this Court that the amendment was made without his knowledge, and that no order for it appears in the record, it will be presumed that it was regularly allowed below, though, in case of inadvertence, the amendment' could be made here.\n2. It is not necessary in a petition by an administrator de bonis non for leave to sell land for assets, to show that the bond of the first administrator has been sued on and exhausted.\nThis was a petition by J. M. Monger, administrator de bonis non of A. F. Harrington, for leave to sell lands to create assets for the payment of debts.\nThe defendants demurred to the petition as follows:\n\u201c For that it does not appear on the face of the complaint, as it should, and, as defendants allege, it is necessary, that action has been had on the bond of the former administrator by the administrator de bonis non, and nothing realized therefrom.\u201d\nThe Clerk of the Superior Court overruled the demurrer, and defendants appealed to Brown, J., who, at chambers, sustained the ruling of the Clerk, and defendants appealed.\nMessrs. Black & Adams, for plaintiff.\nMr. Thomas B. Womack, for defendants (appellants)."
  },
  "file_name": "0294-01",
  "first_page_order": 314,
  "last_page_order": 315
}