Baggarly v. . Calvert
Supreme Court of North Carolina
Civil actioN, an original Bill in Equity, before the adoption of the Code, heard by his Honor, Judge Mitehell, upon a motion to dismiss, at Fall Term, 1873, of Ikkdkll Superior Court. The plaintiff filed his bill in the former Court of Equity of said county in 1866. It was regularly transferred to the Superior Court, in which at the Fall Term, 1872, the death of the plaintiff was suggested.
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Civil actioN, an original Bill in Equity, before the adoption of the Code, heard by his Honor, Judge Mitehell, upon a motion to dismiss, at Fall Term, 1873, of Ikkdkll Superior Court. The plaintiff filed his bill in the former Court of Equity of said county in 1866. It was regularly transferred to the Superior Court, in which at the Fall Term, 1872, the death of the plaintiff was suggested. At the succeeding Spring Term, 1873, the widow of the plaintiff, Sarah, and his heirs-at-law, came in and asked to be made parties plaintiff. It also appeared that no person had taken out letters of…
1Opinion of the Court
ByNüM, J.
The allowance or refusal of the motions made by the defendants, was a matter of discretion for his Honor, and we think he so exercised that discretion, as to promote the ends of justice; under O. C. P., sec. 64, subsection 3-4, an action does not abate by the death of the plaintiff, unless so adjudged by the Court. The law wisely entrusts that power to him, in order that actions may not be dismissed hastily, by surprise, by taking advantage of ignorance, poverty, or, as in this case, because no one has administered upon the estate of the plaintiff,..so as to become a party. The Court…
2Cases cited1 opinion
- Smith v. . Mitchell and AnotherSupreme Court of North Carolina · 1869
3Cited by2 opinions
- Coggins v. . FlytheSupreme Court of North Carolina · 1894
- Coggins v. ElytheSupreme Court of North Carolina · 1894