Taylor v. . Caudle

BbogdeN, J. Did the trial judge rule correctly when he set aside a judgment for damages rendered against the estate of a dead man, when the administrator c. t. a. of the deceased was not a party to the suit, although the cause was fully presented to the jury upon evidence and argument of counsel? The cases dealing with the subject are cited and discussed in Wood v. Watson, 107 N. C., 52, 12 S. E., 49; Knott v. Taylor, 99 N. C., 512, and Lyrm v. Lowe, 88 N. C., 478. There was some vacillation of judicial thinking upon the question and contradictory declarations, but the proposition seems to have been brought to rest in Knott v. Taylor, supra, and Wood v. Watson, supra, which are apparently the last utterances of this Court. In the Knott case, supra, it was held that a judgment rendered against a dead person when the fact of death was unknown, was irregular and voidable. The writer of the opinion in Wood v. Watson, supra, quotes from Freeman on Judgments, see. 153, as follows: “Judgments for or against deceased persons are not generally regarded as void on that account.” Commenting upon the Freeman utterance, the opinion proceeds : “And this view of the law seems to be in accord with the current authorities upon the subject, though, as has been said, there is want of unanimity in the adjudications, and in this State it may be regarded as settled that the death of a party defendant to an action before trial be *301 suggested, and tbe proceedings suspended until tbe real or personal representatives, as tbe ease may be, can be made parties, and tbe action continued against them, and if tbis be not done, and tbe plaintiff takes judgment against a dead defendant, it may be set aside.” Plaintiff asserts tbat tbe judgment ought not to be set aside for two major reasons, to wit: First, tbat it appears from tbe findings of fact tbat tbe cause was properly and fairly tried and every phase of tbe case fully presented to tbe jury, and tbat tbe petition to set tbe judgment aside does not allege merit. Second, tbat after H. T. Caudle was appointed administrator c. t. a. upon order of court, be paid $250.00 to attorneys who tried tbe case, and said attorneys prepared and served statement of case on appeal to tbe Supreme Court. Tbe court is of tbe opinion tbat these contentions ought not to prevail. Tbe trial judge found as a fact tbat “there was no one authorized to represent tbe estate of said George B. Caudle, deceased.” Moreover, as there was no administrator or executor present at tbe trial, or a party to tbe suit at tbe time of tbe trial, tbe dead man bad no one authorized to speak for him. Tbe law contemplates tbat a defendant shall have tbe right to be beard, and manifestly such right was denied in tbis ease. Tbat very fact constitutes merit, even if a showing of merit were necessary. "While tbe administrator c. t. ain obedience to an order of court, paid counsel certain fees, it is not disclosed by tbe record tbat be appeared in tbe action or was made a party thereto, as required by C. S., 462, and tbe Court is of tbe opinion tbat tbe trial judge ruled correctly. Affirmed.