McDowell v. Clark
Supreme Court of North Carolina
Civil action, tried before Mitchell, J., at Fall Term, 1872, of Iredell Superior Court. In his complaint the plaintiff alleged, that at Spring Term, 1869, of Iredell Superior Court, he obtained “an absolute judgment” against the testator of the defendant, and one T. B. Neill, who were executors of John Neill, and also" against one Falls, and that the assignee of Falls had paid one-half of the judgment.
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Civil action, tried before Mitchell, J., at Fall Term, 1872, of Iredell Superior Court. In his complaint the plaintiff alleged, that at Spring Term, 1869, of Iredell Superior Court, he obtained “an absolute judgment” against the testator of the defendant, and one T. B. Neill, who were executors of John Neill, and also" against one Falls, and that the assignee of Falls had paid one-half of the judgment. That Clark, the testator of the present defendant, and one of the executors of Neill, is dead, and that defendant, by his will is the executor. The plaintiff further alleges, that execution…
1Opinion of the CourtPearson, C. J.
1. The first ground upon which the demurrer is put cannot be sustained. The return to the-execution “wholly unsatified,” is not a sufficient .return, as it does not conclusively appear thereby that no goods of the testator were to be found. After an absolutd judgment-against executors, the usual course is to issue an execution •and have it returned, “ no goods or chattels of the testator to be found.” Upon sci. fa, or defendant suggesting a devastavit, the judgment shows that the executor had assets, and the return of the sheriff that the assets cannot be found,, fixes the executor with a…
Also in this document: Per curiam.
2Cited by3 opinions
- Langford v. FewSupreme Court of Missouri · 1898
- Sherburne v. RippeSupreme Court of Minnesota · 1886
- Merrick v. CarterIllinois Supreme Court · 1903