{ "id": 8682085, "name": "SUSAN W. GRAHAM and others v. JAMES T. TATE, Executor", "name_abbreviation": "Graham v. Tate", "decision_date": "1877-06", "docket_number": "", "first_page": "120", "last_page": "126", "citations": [ { "type": "official", "cite": "77 N.C. 120" } ], "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": "72 N. C. 422", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8697307 ], "opinion_index": -1, "case_paths": [ "/nc/72/0422-01" ] }, { "cite": "66 N. C. 116", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276651 ], "opinion_index": -1, "case_paths": [ "/nc/66/0116-01" ] }, { "cite": "8 Jones,, 119", "category": "reporters:state", "reporter": "Jones", "case_ids": [ 1961119 ], "opinion_index": -1, "case_paths": [ "/nc/53/0119-01" ] }, { "cite": "73 N. C. 319", "category": "reporters:state", "reporter": "N.C.", "opinion_index": -1 }, { "cite": "65 N. C. 624", "category": "reporters:state", "reporter": "N.C.", "opinion_index": -1 }, { "cite": "74 N. C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682763 ], "opinion_index": -1, "case_paths": [ "/nc/74/0359-01" ] }, { "cite": "69 N. C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2085522 ], "opinion_index": -1, "case_paths": [ "/nc/69/0406-01" ] }, { "cite": "67 N. C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2092636 ], "opinion_index": -1, "case_paths": [ "/nc/67/0235-01" ] }, { "cite": "65 N. C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1955401 ], "opinion_index": -1, "case_paths": [ "/nc/65/0393-01" ] }, { "cite": "76 N. C. 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8692344 ], "weight": 2, "pin_cites": [ { "page": "399" } ], "opinion_index": -1, "case_paths": [ "/nc/76/0271-01" ] } ], "analysis": { "cardinality": 599, "char_count": 11648, "ocr_confidence": 0.419, "pagerank": { "raw": 4.097468028546378e-07, "percentile": 0.9095690520953152 }, "sha256": "4f52d4965e769f725099d7eff7dcc2acbf26cd8c6f1298570c62470bbe23911c", "simhash": "1:6f19ab20655f41c6", "word_count": 2025 }, "last_updated": "2023-07-14T20:46:21.915598+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SUSAN W. GRAHAM and others v. JAMES T. TATE, Executor." ], "opinions": [ { "text": "Pearson, C. J.\nIt is irregular and against the course of the Court to enter a verdict, unless the plaintiff be present either in person or by his attorney. This proposition is fully established by the authorities cited by Mr. Jones, and is recognized in all the books as a general rule to which very few exceptions are made. So that, a plaintiff can at any time before verdict withdi-aw his suit, or, as it is termed, \u201ctake a nonsuit \u201d by absenting himself at the trial term. If ' he does so and fails'to answer when called, by himself or by his attorney, the Court directs a nonsuit to be entered ; the \u25a0 cost is taxed against him, and that is an end of the case.. Even when the plaintiff appears at the trial, takes a part in. it by challenging jurors, examining and cross-examining witnesses, and the argument of his counsel, if he finds from an intimation of the Court that the charge will be against him, he may submit to a nonsuit and appeal. This is every day\u2019s practice. It is based upon the idea that the plaintiff an- \u25a0 nounces his purpose not to answer when called to hear the verdict, and the advantage is, that the plaintiff\u2019 can have-Ilis Honor\u2019s opinion reviewed, and should the decision of the Supreme Court be against him, he can commence another action ; whereas if he allows a verdict to be entered, it is conclusive unless set aside. Nay, according to the course of\u2019 the Court the plaintiff is at liberty to take a nonsuit by an- \u25a0 nouncing his purpose to absent himself even after the J udge has charged the jury and their verdict is made up; provided he does so before the verdict is made known.\nIn our case, the plaintiff having commenced an action in. the Federal Court and voluntarily absented himself at the-trial term had a right to suppose that a nonsuit would be \u25a0 entered. The verdict and judgment entered in his absence' are irregular and void. We must say that \u25a0 the conduct of' -the defendant, in taking a ve'rdict and judgment which,'if \u25a0not set aside and vacated, would conclude the plaintiff\u2019s \u25a0right of action in the absence of the plaintiff and his counsel, 'has much the appearance of \u201csharp practice.\u201d Mr Bailey, \u00a1admitting the general rule in an ordinary action at law, attempted to take this case out of its operation by assuming the position that the statute, (Bat. Rev. ch. 45.) \u201cExecutors and Administrators,\u201d provides a special proceeding similar to the old practice of issues sent by the Chancellor to be tried by a jury in a Court of Law, for \u201cthe enlightenment of \u25a0the Chancellor\u2019s conscience in which case the plaintiff was mot allowed to disappoint the purpose of the Chancellor by .\u25a0absenting himself from the trial. This involves the con- \u25a0 struction of the statute.\nThe\u2019 proceeding is under \u00a7 73, by two of the creditors, named, and all other creditors of the deceased to compel the personal representative to an account of his administration, and to pay the creditors what may be payable to them respectively. Osborne\u2019s debt was denied, and he filed a complaint under \u00a7 82 ; \u201cThe creditor shall thereupon file in the \u25a0office of the Clerk a complaint founded on his said claim, and the pleadings shall be as in other cases.\u201d An issue of fact \"being raised, the Clerk sent it up to the Superior Court for \u25a0trial under \u00a7 83. -The debts of Mrs. Graham and Miss \u25a0Cameron, the two creditors who instituted the proceeding, \u25a0being also disputed, they severally filed complaints, and the \u2022issues of fact were in like manner sent .up to the Superior \u25a0Court for trial.\nThe question is ; Are the issues sent up to the Superior -Court to be tried for the enlightenment of the conscience of the Judge of Probate ? Or does the complaint of the several-creditors constitute a distinct proceeding for the purpose of .-.ascertaining their respective debts, to be proceeded in separately so as to \u201clet each tub stand on its own bottom?\u201d\nWe think it clear the latter is the proper construction of' the statute. And although when issues are sent up, the title-should be in the name of the creditors who instituted the special proceeding against the personal representative in. order to show the original proceeding, of' which the complaint of the particular, creditor is a branch, it is proper to-make a further title, setting out the name of the. creditor,, upon whose complaint and the answer thereto, the issues are-raised. Eor instance, in this case the title should be, \u201cGraham & Cameron v. Tate, executor. Issues on the complaint of Osborne.\u201d \u201cGraham & Cameron v. Tate, executoi'. Issues-on the complaint of Graham.\u201d \u201cGraham'& Cameron v. Tate, executor. Issues on the complaint of Cameron.\u201d In this-mode the complaint of the several creditors will be kept-separate, and confusion avoided.\nThe purpose of the statute was to unite all the creditors* in one special proceeding, in order to bring the personal, representative to an account after two years, and to' compel, an application of the assets by payment to the creditors-whose debts have been ascertained.\nThe debts may be ascertained before the special proceeding is commenced in one of three modes ; (1) by admission of' the personal representative; (2) by reference, under \u00a7 50; and (3) by action for the recovery thereof, under \u00a7 51. Eut the action merely ascertains the debt, and no execution can issue on the judgment, \u00a7 133. Where a debt has not been ascertained before the special proceeding is commenced by a creditor for ah account and distribution of the assets, provision is mdcle- for its ascertainment by \u00a7 \u00a7 82, 83, which in effect gives an action of debt to be proceeded in as therein prescribed, pending the special proceeding by all the creditors.\nThe statute is very long \u2014 168, sections, 25 pages \u2014 and contains many details, but .we have given\" an exposition \u00a9f its-main provisions. The result is that the verdict and judgment entered by His Honor, Judge Cloud, was irregular. The verdict ought to have been set aside and the judgment \u25a0vacated.\nPer Curiam. Judgment affirmed.", "type": "majority", "author": "Pearson, C. J." } ], "attorneys": [ "Messrs. Jones $ Johnston, Dowd $ Walker\\ J. E. Brown and Walter Clark, for plaintiffs,", ". Messrs. Shipp $\u25a0 Bailey, J. M McGorkle, Dillard Gilmer and J. W. Hinsdale, for defendant." ], "corrections": "", "head_matter": "SUSAN W. GRAHAM and others v. JAMES T. TATE, Executor.\nI^aetiee \u2014 Nonsuit\u2014Estates of Deceased Persons \u2014 Proceeding by Creditors.\n1. The entry of a verdict against a plaintiff who is not present either in person or by attorney, is irregular and contrary to the course of the Court.\n.2. A plaintiff at any time before verdict is entitled to submit to a nonsuit; Therefore, when a plaintiff institutes an action and absents himself at the trial term, the proper course is for the Court to direct a nonsuit to be entered against him.\n-j. In a proceeding by creditors against a decedent\u2019s estate under Battle\u2019s Revisal, ch. 4\u00f3, \u00a7\u00a7 73 et'se.q. each complaint of the several creditors constitutes a distinct proceeding, to be proceeded in separately. (Observations by Peabson, O. J. upon the statute.)\nMotioN to set aside and vacate a Verdict and Judgment, heard at Spring Term, 1S77, of Rowan Superior Court, before Kerr. J.\nThis was a special proceeding commenced in the Probate Court of Gaston County, by the plaintiffs as executors of William A. Graham, deceased, and Mildred C. Cameron, in behalf of themselves and all other creditors against tlie defendant, as executor of Thomas R, Tate, deceased, to compel an account of his administration and payment of the debts alleged to be due to plaintiffs The debts were, disputed ; and upon issue joined, the case was transferred to Gaston \u00a1Superior Court; and upon affidavit of the defendant, it was removed to Rowan, and tried at Fall Term, 1876, before Goad. J.' The defendant\u2019s testator, Thomas R. Tate, and Thomas W. Dewey (now deceased) were partners in a general banking business, known as the Bank of Mecklenburg. IE. A. Osborne, the Assignee in Bankruptcy of said Bank, was permitted to be made a party plaintiff, and filed his complaint demanding of defendant the payment of a large sum of money ; and the defendant also denied this debt. Upon issues submitted at Fall Term, 1876, of said Court, the jury found that the testator of defendant was indebted to the.executors of William A. Graham, $5,000, and to Mildred C. Cameron, $14,000, and that he was not indebted to said \u25a0Osborne, and Cloud, J!, directed the same to be certified to the Superior Court of Gaston, and adjudged that the defendant recover costs of the plaintiff Osborne.\nSubsequently, Osborne filed an affidavit setting forth that he had abandoned the prosecution of this action, and had instituted an action in the Federal Court against the defendant ; that he never authorized the names of his attorneys to be entered of record in this or any other case in said Superior Court; that he attended said Superior Court only as a witness in the ease of Graham Cameron v. Tate, and in \u2022obedience to a summons as such ; that he was not informed \u25a0of the verdict and judgment against him until two of three months after said term, and that the same was an utter surprise to him. He further swore that his name did not appear as a plaintiff of record by himself or bj' attorney, but only in the issues which were submitted to the jury. Upon this affidavit he moved the Court to set aside and vacate said verdict and judgment upon the ground :\n.1. That said verdict and judgment were taken in surprise of said assignee, and by his mistake .and excusable neglect.\n2. That they were rendered irregularly and against ihe course and practice \u00a9f the Court.\nCounter affidavits were filed by the defendant controverting some of the statements made by Osborne. Thereupon His Honor after argument of counsel found the following -facts :\n1. That the certified transcript from Gaston Superior Court, and the entries upon the dockets of this Court are the only proper records in this case.\n2. That the action in which Osborne, Assignee,'&e., is plaintiff, and Tate, executor, defendant, has never been regularly removed to this Court, and no such action is here.\n3. -That Osborne had no notice of the pendency of such action, or that issues had been submitted; nor did he appear in person or by attorney; nor did he have notice that said verdict and judgment had been rendered until some two' months afterwards.\n4 That no separate action in which said Osborne and Tate; were parties was ever docketed in G-aston Superior Court, or in this Court\n5. That only one jury was impannelled in the special proceeding or action in which Graham and Cameron were plaintiffs and Tate, defendant.\n6. That no evidence was submitted to the jury upon the issues in the alleged trial of the case of Osborne and Tate.\n7. That in the answer filed in the Federal Court by the defendant to the bill in equity of Osborne, the pendency of this action in Rowan was relied upon as a defence.\nWhereupon His Honor held, that said verdict and judgment were not rendered according to the course and practice of the Court, so far as they relate to the case of Osborne and. Tate, and that if Osborne ivas guilty of neglect, it was excusable. Motion to set aside and vacate verdict and judgment allowed, and the defendant appealed.\nMessrs. Jones $ Johnston, Dowd $ Walker\\ J. E. Brown and Walter Clark, for plaintiffs,\ncited White v. Snoio, 71 N. 0, 232; Bluder v. Hollins, 76 N. C. 271; McDaniel v. Watkins,, Ibid. 399; Hudgins v. White, 65 N. C. 393; Watson v. Shield, 67 N. C. 235; Cowles v. Hayes, Ibid. 128, and 69 N. C. 406; Wolf v. Davis, 74 N. C. 359 ; Waddell v. Wood, 65 N. C. 624 ; Wade y. City of New Berne, 73 N. C. 319 ; B. B. Co. v. Vincent, 8 Jones,, 119 ; Grid v. Vernon, 65 N- 0. 76 ; Gibbs v. Fuller, 66 N. C. 116 ; Benbow v. Bollins, 72 N. C. 422; Kitchen. v. Troy, Ibid. 50.\n. Messrs. Shipp $\u25a0 Bailey, J. M McGorkle, Dillard Gilmer and J. W. Hinsdale, for defendant." }, "file_name": "0120-01", "first_page_order": 134, "last_page_order": 140 }