Opinion
June Term, 1850.
1. An administrator is protected by judgments rendered against him within the nine months allowed him to plead, though in suits after that in which he pleads them.
2. An administrator who establishes his plea of fully administered is entitled, of course, under our statute, to his costs; and the plaintiff, though he take a judgment quando, cannot have a judgment against the surety in the administrator's appeal bond, the case having been tried upon appeal.
APPEAL from the Superior Court of Law of FORSYTH, at Spring Term, 1850, Battle, J., presiding.
Morehead for plaintiff.
Iredell for defendant.
The defendant administered on the estate of the intestate at December Term, 1848, of the County Court; and on 2 January, 1849, the present warrant was brought in debt on a bond of the intestate for $81.13 and returned before a justice of the peace. The defendant appeared before the magistrate and alleged his want of assets to pay any part of the debt, and prayed that the trial should be postponed to some day after the expiration of nine months from the administration taken. But the magistrate refused the postponement, and gave an immediate and absolute judgment for the debt, interest and costs; and the defendant thereupon appealed to the County Court. Upon the filing of the appeal the defendant moved to quash the judgment on the ground of the magistrate's refusal to postpone the trial. The court refused the motion, but allowed the defendant time until September Term, 1849, to plead in respect of the assets. At that term he accordingly pleaded plene administravit, no assets, and prior judgment. After a decision in the (66) County Court, the plaintiff appealed, and on the trial in the Superior Court the defendant offered to prove that he had applied all the assets to the satisfaction of judgments obtained against him prior to September, 1849, in suits brought after January of that year. The plaintiff objected to the evidence, but the court received it, and the jury found that the defendant had fully administered. Thereupon the plaintiff signed a judgment quando for the debt, and he also moved for judgment therefor against the surety for the appeal from the judgment of the magistrate. But the court refused the latter motion, and gave judgment against the plaintiff for the defendant's costs; and thereupon the plaintiff appealed.
The course of the justice of the peace was directly in opposition to the act of 1828, and therefore erroneous. The postponement of the trial of a warrant brought before the expiration of nine months from the administration is not in the discretion of the magistrate, but it is made peremptorily his duty; that is, if required by the administrator, for whose benefit the act was passed. But it is not material now to consider that matter, since the administrator had in the County Court the benefit of the delay in pleading until the end of the nine months, and the question is as to the effect of his plea. As to that point the recent case of Bryan v. Miller, 32 N.C. 129, is decisive, as it establishes as the necessary construction of the statute that the administrator is protected by judgments rendered against him within the nine months, though in suits after that in which he pleads them.
(67) As the administrator established his plea of plene administravit, he was, of course, entitled under the act of 1777 to his costs. Welborn v. Gordon, 5 N.C. 502. That rule is not altered by the statute, which allows a plaintiff, contrary to the common law, to sign judgment quando after issue joined on plene administravit and found against the plaintiff, as was expressly held in Battle v. Rorke, 12 N.C. 228.
It follows necessarily from those positions that the plaintiff could not have judgment against the surety for the appeal, for it is impossible there should be judgment against the surety when in the same record the judgment is for the principal. If the original judgment had been against the intestate and he had appealed and died, and the cause been revived against the administrator, then the surety would have been liable for the debt formed and the costs; for, supposing that the administrator could therein put the question of assets in issue and it were found for him, such finding would not cover the whole obligation of the surety, who undertook for the ability of the debtor to pay the debt, if any should be adjudged. But when the administrator appeals, the very question may be, and generally is, whether he hath assets; and if that be found for him, it entitles him to judgment that the plaintiff take nothing by his writ; and that covers the entire undertaking of the surety for his principal, the administrator.
It is considered, therefore, that the decisions were right on each point, and the judgment is affirmed.
PER CURIAM. Judgment affirmed.
Cited: Lewis v. Johnston, 67 N.C. 39; s. c., 69 N.C. 395.
(68)