Hinsdale v. . Hawley

SMITH, C. J., after stating the case. Our attention is called to the case of Wolfe v. Davis, 74 N. C., 597, wherein a judgment, essentially the same in terms as the present, is held to be irregular, and a refusal to set it aside reversed for error. The ruling would be directly applicable if the movement in this case for the vacation of the judgment, as in that, had proceeded from the defendant, the injured party. The administratrix has been deprived of her defence of a want of assets, .po as to render her personally chargeable, if the record remains showing an absolute and final judgment against her in her representative character. Still it has been held, that to a process instituted to subject her own estate to the recovery, she may show that she had no assets, as the opportunity of doing so had been lost. Emmett v. Steadman, 2 Hay., 15, commented on., and the present practice explained in Ray v. Patton, 86 N. C., 386. But we are unable to see in. what manner the plaintiff can be prejudiced by the form of the record of the judgment, unless in so far as it restrains the issue of execution, and the correction of this will afford him full relief, without disturbing the judgment itself. Should he seek to convert it into a personal judgment, the defendant, upon the authority of the case cited, would be at liberty then to set up the defence of the want of assets in answer to the process. But, in our opinion, so long as the defendant is content, the plaintiff' cannot call on the court tó vacate what we must understand to have been done at his instance and for his benefit. “No one but a defendant,” says Rodman, J., in Jacobs v. Burgwyn, 63 N. C., 196, “can complain of its irregularity,” *89 and this is repeated in Rollins v. Henry, 78 N. C., 342, meaning, as we interpret the words, the party injured. We do not concur in the ruling of the court, and the judgment must'be reversed. It is so ordered. Error. Reversed.