Hood Ex Rel. Merchants & Manufacturers Bank v. Freel

BkogdeN, J. Can a creditor of the heir intervene in a proceeding to sell the land of the intestate to make assets to pay the debts of such intestate? The judgment rendered by Judge Clement, at the January Term, 1933, was not a final judgment because it ordered the administrator “to proceed promptly and with diligence to make the necessary sale or sales in order to obtain assets to pay said debt . . . and this cause is retained for further orders.” Consequently the right to intervene is not foreclosed. Wadford v. Davis, 192 N. C., 484, 135 S. E., 353. See, also, Page v. McDonald, 159 N. C., 38, 74 S. E., 642. Moreover, the judgment affected the rights of W. B. Walker and was based upon substituted service. Consequently Walker would have been entitled to invoke the remedy contained in 0. S., 492. This section provides in substance that “the defendant against whom publication is ordered or his representatives may in like manner upon good cause shown be allowed to defend every judgment, or at any time within one year after notice thereof and within five years after its rendition, on such terms as are just,” etc. It is asserted that the word “representatives” used in the statute is not broad enough to include a creditor like the petitioner. The courts, however, have been disposed to give the word broad in *436 terpretation. For instance, Black’s Law Dictionary (second edition), page 1020, declares: “Moreover, the phrase is not always used in its technical sense nor always with reference to the estate of a decedent; and in such other connections its import must be determined from the context; so that, in its general sense of one person representing another, or succeeding to the rights of another, or standing in the place of another, it may include an assignee in bankruptcy or insolvency, an assignee for the benefit of creditors, a receiver, an assignee of a mortgage, a grantee of land, a guardian, a purchaser at execution sale, a widow, or a surviving partner,” etc. Therefore, the court is of the opinion that, in view of the allegations contained in the petition, the petitioner was entitled to intervene. The administrator relies upon Battle v. Duncan, 90 N. C., 546, to defeat the right of intervention, but it must be observed in that case the proceeding to make assets had been completed and the funds actually in hand. Hence, the court properly ruled that no intervention was allowable in a proceeding that had already spent its force. Reversed.