Gaither v. . Sain

Mbkrimon, J. The intestate of defendant died, and letters.of administration upon his estate were granted,..prior to the year 1860, to one Bailey, who was afterwards removed and the defendant appointed administrator de banis non. The judgment quando acdderint sued upon was granted at fall term, 1869. The court below seems to have entertained the erroneous impression that this action is governed by the statute (The Code, § 152) which bars actions upon judgments and decrees of any court, after ten years next after the date thereof. The Code, § 136, provides that Title III of the Code of Civil Procedure, entitled “Limitations of Actions,” shall not extend to actions commenced before the 24th day of 'August, 1868, nor when the right of action accrued before that date, but the statutes in force previous to that date shall be applicable to such actions and cases. Now the right of action in this case accrued long before 1868. It seems however that the court supposed the quando judgment sued upon, although founded upon a right of action that accrued before that time, was itself a new causa *307 litis, and therefore the action was barred after ten years. If so, this was a misapprehension of the law in that respect. That was not a final judgment that, might be sued upon' as a new cause of action : it was conditional and interlocutory in its nature, and stood open to be completed — ■ made final and absolute when assets should go into the hands of the administrator : and this should be ascertained and made to appear by a proper proceeding. Under the common law method of procedure, this was done by sci.fa.-; under the code-method of procedure, as it prevails in this state,' it is done by action, as the plaintiffs are seeking to do in this case. The purpose of the present action is to charge the administrator with assets that have come into his hands since the judgment quart do was given, and obtain a final judgment upon a right of action that accrued prior t,o 1868. It is an action that takes the place of, and is a substitute for' the sci. fa. proceeding in like cases. Bing. on Judgment, 3, 90, et seq, and as to form of judgment ib., 331; Rountree v. Sawyer, 4 Dev., 44 ; Henderson v. Burton, 3 Ired. Eq., 259; Lash v. Hauser, 2 Ired. Eq., 489; Dancy v. Pope, 68 N. C., 147; Ray v. Patton, 86 N. C., 386; Rogers v. Grant, 88 N. C., 440. We may add that the views thus expressed are in harmony with the provisions of the statute (The Code, §§ 1433, 1476) which provide that estates whereof administration had been granted before the first day of July, 1869, “shall be dealt with, administered and settled according to the law as it existed just prior to the said date.” There was no-statutory bar as the court intimated. There is error. The nonsuit must be set aside and the case reinstated and disposed of according to law. To that end, let this opinion be certified to the superior court. It is so ordered. Error. Reversed.