R. J. and R. W. McDowell v. . D. Asbury
Supreme Court of North Carolina
This was a motion for an execution de bonis propriis on notice, heard and determined by His Honor Judge Moore, at July Term 1871, of Mecklenburg Superior Court.
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This was a motion for an execution de bonis propriis on notice, heard and determined by His Honor Judge Moore, at July Term 1871, of Mecklenburg Superior Court. The plaintifls had theretofore received a judgment against the defendants as executors, fixing them with assets and caused' an execution de bonis testatoris to issue, which had been returned nulla bona. .Thereupon this motion was made, which His Honor declined to grant, on the ground that the proper remedy was by a. civil action. The plaintiff from this ruling of His Honor appealed.
1Opinion of the Court
Dirac. J,
The administrator withdrew his plea of “fully administered,” and allowed judgment to be entered against him for the debt of his intestate. This judgment fixed him with assets, and an execution was issued agd returned nulla bona, &e. The plaintiff after giving notice to the administrator, to make a motion before His Honor for an execution de bonis propriis.
The motion was refused on the ground that a civil action was the proper remedy. In such cases the (D. C. P. has provided no specific remedy, and we must consider the general scope and purpose of the Code on determining whether or…
2Cases cited3 opinions
- Mason and Another v. . MilesSupreme Court of North Carolina · 1869
- Mann v. . BlountSupreme Court of North Carolina · 1871
- Jones v. . GuptonSupreme Court of North Carolina · 1871
3Cited by4 opinions
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- Williams v. . GreenSupreme Court of North Carolina · 1879
- Hunter v. . HunterSupreme Court of North Carolina · 1817