Askew v. . Capehart
Supreme Court of North Carolina
Civil Actios, tried at Spring Term, 1878, of Bertie Superior Court, before Henry, J. This action was heard upon complaint and demurrer upon the state of facts set out in the opinion.
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Civil Actios, tried at Spring Term, 1878, of Bertie Superior Court, before Henry, J. This action was heard upon complaint and demurrer upon the state of facts set out in the opinion. In answer to the objection that the proceeding should be by a motion in the cause, the plaintiff avowed his willingness to have his complaint in the action considered as such motion upon such terms as the Court might impose, but His Honor sustained the demurrer and dismissed the action, and the plaintiff .appealed.
1Opinion of the Court
ByNüm, J.
This action must be dismissed upon two grounds:—
1. If the plaintiff is entitled to relief, it is by a motion in the Cause and not by a new action. One Mitchell was-.the administrator on the estate of Charles Capehart, deceased, and the plaintiff was the surety on his administration bond. In 1873 the defendants, who are two of the distribu-tees of the estate, brought an action against the administrator and his surety upon the bond for their share of the estate, and in the spring of 1874 obtained a judgment, and this original action was begun in the fall of 1875 to correct certain…
2Cases cited1 opinion
- McDaniel v. . WatkinsSupreme Court of North Carolina · 1877
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- Lynn v. . LoweSupreme Court of North Carolina · 1883
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- Foster v. . Allison CorporationSupreme Court of North Carolina · 1926
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