State Ex Rel. Marler-Dalton-Gilmer Co. v. Golden

WalheR, J., after stating tbe ease: Tbe principal questions in tbis appeal are settled by Bean v. Bean, 135 N. C., 92, where it is held that a proceeding similar to the one taken in this case is not an estoppel, but simply one for the purpose of having the final account filed with the clerk and audited. It also decides that the taxes paid on.the land are not proper credits to the administrator. As to the estoppel, see Royster v. Wright, 118 N. C., 152; Allen v. Royster, 107 N. C., 278; Collins v. Smith, 109 N. C., 468. It is said in Bern v. Bean, supra: “The account, as filed and stated in response to the citation, had no more force or effect against him than the account would have had if lie had filed it voluntarily. The statute expressly provides that fit shall be deemed prima facie evidence of correctness,’ even when it is audited by the clerk, by the examination of vouchers or witnesses, or of both. The auditing is' an ex parte proceeding and has none of the features or characteristics of that kind of judicial proceeding the judgment in which works an estoppel upon the parties. This really disposes of the other question, as, if the plea was bad on the defendant’s own showing, there was no use in deferring the taking of the account until it was passed upon, and the court was right in.holding that the said proceeding did not constitute an estoppel, nor could it form the basis of a good plea in bar. Jones v. Sugg, 136 N. C., 143. The judgments were evidence of the indebtedness and very conclusive proof. Brown v. Harding, 170 N. C., 253 (s. c., 171 N. C., 686). Having-held that there was no estoppel and that the plea in bar was not good, there was nothing for a jury to try, and there was no application, and certainly no proper application, for a jury trial upon any other question. Driller Co. v. Worth, 117 N. C., 515; Keerl v. Hayes, 166 N. C., 553; Alley v. Rogers, 170 N. C., 538. The defendant was not entitled to a judgment of nonsuit against the plaintiffs. There was evidence as to the amount of receipts by the administratrix and the burden was upon her to show what she did with them, as she made the disbursements. This refers, of course, to the assets she received, which were properly chargeable to her in her final account. There is no serious dispute as to what she did with the assets, as it is stated in the account, but she had merely paid some of the creditors more 'than- their just share. The finding of the referee that the administratrix is indebted to the plaintiffs in the several amounts above set forth in the statement of the ease was well supported by the facts, and, besides, when a referee makes a finding of fact from evidence and it is approved by the judge, *826 upon exception to tbe report, we do not review tbe finding bere. McCullers v. Cheatham, 163 N. C., 63; Spruce Co. v. Hayes, 169 N. C., 254; Sturtevant v. Cotton Mills, 171 N. C., 119; Alley v. Rogers, supra. A careful review of tbe case leads us to tbe conclusion tliat there was no error committed by tbe court, and we, therefore, affirm tbe judgment. Affirmed.