Manix v. . Howard
Supreme Court of North Carolina
Inquiry to assess Damages instituted at Spring Term, 1878, of Craven Superior Court, before Kerr, J. On the 10th of October, 1874, Nancy Folk, the intestate of plaintiff and trustee of S. A: Burnett, issued a summons to the defendant returnable to Fall Term, 1874, of Craven Superior Court, on 4th Monday after 2d Monday in September.
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Inquiry to assess Damages instituted at Spring Term, 1878, of Craven Superior Court, before Kerr, J. On the 10th of October, 1874, Nancy Folk, the intestate of plaintiff and trustee of S. A: Burnett, issued a summons to the defendant returnable to Fall Term, 1874, of Craven Superior Court, on 4th Monday after 2d Monday in September. On the same day, Oct. 10, the cestui que trust Burnett made the affidavit required by C. C. P. § 177 and obtained a requisition on the sheriff to take four mules from the defendant and deliver them to the plaintiff, (§ 178) and the sheriff" thereupon took the…
1Opinion of the CourtBodmaN, J.
(After stating the case as above.) The only question presented on this record is, — whether the plaintiff (and the nominal plaintiff and his cestui que trust must be considered one) could legally be allowed to prove title to the mules notwithstanding the action had been dismissed ?
A few observations it seems to us will suffice to show, that the decision of the Judge in favor of the right of the plaintiff to do so can not be sustained. If notwithstanding the dismissal of the action for irregularity in the summons, the plaintiff can go on and give evidence of his title just as if the action was…
2Cases cited1 opinion
- Folk, Trustee of Burnett v. . HowardSupreme Court of North Carolina · 1875
3Cited by2 opinions
- Horton v. . HorneSupreme Court of North Carolina · 1888
- Manix v. . HowardSupreme Court of North Carolina · 1880