{
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  "name": "McLEOD v. GRAHAM",
  "name_abbreviation": "McLeod v. Graham",
  "decision_date": "1903-04-28",
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  "provenance": {
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    "judges": [],
    "parties": [
      "McLEOD v. GRAHAM."
    ],
    "opinions": [
      {
        "text": "Clark, C. J.\nThis is an action brought against the defendant administrator for an alleged indebtedness by bis intestate to the plaintiff. After suit brought and without pleadings having been filed, the parties agreed in writing to submit the matter in dispute to arbitration. The Code, See. 1426. The arbitrators made an award and reported the same to court and judgment was duly entered thereon. At the nest term, a distributee of the estate filed a .petition to set aside the judgment, and subsequently thereto' the arbitrators filed a statement that they bad detected an error in the addition of the figures to the amount of $168 and \u201cauthorized and instructed the clerk to change their report in making the award $146.44 instead of $314.44.\u201d 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, at this term. No fraud is alleged, and if there bad 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, 109 N. C., 29.\nBut we can not discover any irregularity in the judgment. The action was pending and the judgment was regularly entered and in due course. The failure to file a complaint was ground to dismiss the action, if objection bad been taken in apt time, The Code, Sec. 206, but its absence was cured by acquiescence in the judgment. Vick v. Pope, 81 N. C., 22; Leach v. Railroad, 65 N. C., 485; Stancill v. Gay, 92 N. C., 455; Peoples v. Norwood, 94 N. C., 167; Little v. McCarter, 89 N. C., 233; Robeson v. Hodges, 105 N. C., 49; McNeill v. Hodges, 105 N. C., 52; Peebles v. Braswell, 107 N. C., 68; McLean v. Breece, 113 N. C., 390. Besides, the submission (in writing) to arbitration, the written award and the consent to' the judgment thereon show that the defendant bad as full information as could have been bad from a complaint.\nThe submission to arbitration or reference was authorized by The Code, Sec. 1426. Lassiter v. Upchurch, 107 N. C., 411. The action brought was sufficient \u201cfiling\u201d the claim, Stonestreet v. Frost, 123 N. C., 640, but if it were otherwise, that was a matter to bave been beard in opposition to the judgment and not as ground to set it aside, for the defendant not only was a party to the arbitration, but it is found as a fact that bis counsel knew of the arbitration and knew of the signing the judgment. Whether the judgment will protect the defendant administrator against the distributees in an action charging negligence or want of care in bis administration, can not now be raised, for the distributees are not parties to this action. This motion is between the parties and rests upon the alleged irregularity of the judgment. The attempted intervention and affidavit of the distributee can not be considered. Walton v. McKesson, 101 N. C., 428.\nIf the award itself bad been contested for error in calculations 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. Met\u0107alf v. Guthrie, 94 N. C., 451. The parties accepted and agreed upon the award as the amount due, and judgment was by consent. Moore v. Austin, 85 N. C., 179. If the judgment was erroneous, the only remedy was by appeal. Henderson v. Moore, 125 N. C., 383. The defendant properly concedes in bis brief that the court could not modify or amend such consent judgment, citing Kerchner v. McEachern, 93 N. C., 455, and rests bis case upon the power of the court to set aside an irregular judgment. The reference to arbitration was valid, Lassiter v. Upchurch, 107 N. C., 411, but even that matter is not before us after judgment in the cause. If it should be a hardship not to correct an alleged error in an award after judgment thereon, it is a less hardship than a practice leaving arbitrators to be worked on by the unsuccessful parties to actions. \u201cHard cases are the quick sands of the law.\u201d An error in calculating an award is like an error in the calculation of their verdict by a jury, which can not be brought forward at a subsequent term upon a statement of the jurors to set aside a judgment regularly entered upon the verdict.\nUpon the findings of fact, the judgment setting aside the former judgment must be\nReversed.",
        "type": "majority",
        "author": "Clark, C. J."
      }
    ],
    "attorneys": [
      "Rose & Rose, for the plaintiff.",
      "H. L. Cook, for the defendant."
    ],
    "corrections": "",
    "head_matter": "McLEOD v. GRAHAM.\n(Filed April 28, 1903.\n1. JUDGMENTS \u2014 Irregular\u2014Complaint\u2014The Code, Sec. 206.\nAcquiscence in a judgment waives the failure to file a complaint.\n2. EXECUTORS AND ADMINISTEATORS \u2014 Arbitration and Award-References \u2014 The Code, See. I486.\nThe Code, Sec. 1426 authorizes the submission to arbitration of a claim against an administrator.\n3. EXECUTORS AND ADMINISTEATOES\u2014 Claims \u2014 Filing\u2014Pleadings.\nAn action brought against an administrator is a sufficient filing of a claim against the estate.\n4. EXECUTORS AND ADMINISTRATORS \u2014 Judgments\u2014Distributees.\nOn a motion by an administrator to set aside a judgment by a creditor of the estate upon an alleged irregularity of the judgment, the distributees cannot intervene.\n6. ARBITRATION AND AWARD \u2014 Judgments\u2014References\u2014The Code, Secs. 276, I486 \u2014 Appeal.\nAfter an award has passed into final judgment, it is too late to contest the same for alleged mistake in calculation of arbitrator, or that the arbitration had not been made a rule of court, or that the amount was agreed upon by the parties, or that the reference to arbitration was invalid. For an erroneous judgment the only remedy is by appeal.\nAction by N. A. McLeod against G. W. Graham, administrator, beard by Judge Charles M. Coolee, at February Term, 1903, of the Superior Court of Cumbeeland County. From a judgment setting aside a judgment for the plaintiff, be appealed.\nRose & Rose, for the plaintiff.\nH. L. Cook, for the defendant."
  },
  "file_name": "0473-01",
  "first_page_order": 523,
  "last_page_order": 526
}