Hood ex rel. Citizens Bank & Trust Co. v. Stewart

Clarkson, J. In the judgment of the clerk is the following: “That the complaint filed in this cause does not state a cause of action against the estate of J. W. Stewart, or against his executrix as such. Upon the foregoing findings of fact, the court concludes as a matter of law that said judgment is irregular and is not taken in accordance with the due course and practice of the Superior Court of Craven County, North Carolina, and not in accordance with section 130 of the Consolidated Statutes of North Carolina.” In the judgment of the court below we find: “The complaint, upon which said judgment is based, sets out and recites a note in the sum of eleven thousand dollars, dated 30 June, 1930, signed: ‘Sarah C. Stewart, Executrix Estate of John W. Stewart,’ which date was subsequent to the death of the testator, John ~W. Stewart. It is not alleged in the complaint that said note was executed for a debt in existence at the time John W. Stewart died, which was a liability of the estate of the said John W. Stewart. The heirs at law of John W. Stewart, other than Sarah O. Stewart, are not parties to the motion to vacate said judgment, but the defendant undertakes in behalf of herself and said heirs to make and enter said motion.” In Snipes v. Monds, 190 N. C., 190 (191), is the following: “An executor cannot, by any contract of his, fasten upon the estate of his testator liability created by him, and arising wholly out of matters occurring after the death of the testator,” citing numerous authorities. Ins. Co. v. Buckner, 201 N. C., 78. [429] In Allen v. Armfield, 190 N. C., at p. 870-1, we find: “A personal representative is not answerable in his official character for a cause of action not created by the decedent. As the Court said in Whisnant v. Price, 175 N. C., 611, the uniform rule is that no action will lie against the personal representative of the deceased person except upon some claim which existed against the deceased in his lifetime and for a claim accruing wholly in the time of. the administration, the administrator is liable only in his personal character. Snipes v. Monds, ante, 190.” Hall v. Trust Co., 200 N. C., 734, 739. Eor the court to render a judgment against Sarah C. Stewart, executrix of the estate of John W. Stewart, it was necessary for the complaint to allege such liability as set forth in the above cases. This was not done in the complaint. The clerk and the court below both found that the complaint filed in the cause does not allege a cause of action against the estate of John "W. Stewart; that the note was not executed for a debt in existence at the time John W. Stewart died, which would make it a liability of the estate. There is no allegation in the complaint that Sarah C. Stewart contracted individually, so as to bind her personally, and we do not think an implication arises on the present record. Banking Co. v. Morehead, 116 N. C., 413; Bessire & Co. v. Ward, ante, 266. To collect this judgment plaintiff must do something more than issue execution. N. C. Code, 1935 (Michie), sec. 130, provides: “All judgments given by a judge or clerk of the Superior Court against a personal representative for any claim against his deceased shall declare: (1) The certain amount of the creditors demand. (2) The amount of assets which the personal representative has applicable to such demand. Execution may issue only for this last sum, with interest and costs.” Section 131: “No judgment of any court against a personal representative shall fix him with assets, except a judgment of the judge or clerk, rendered as aforesaid, or the judgment of some appellate court rendered upon an appeal from such judgment. All other judgments shall be held merely to ascertain the debt, unless the personal representative by pleading expressly admits assets.” Section 132: “All executions issued upon the order or judgment of the clerk, or of any appellate court against any personal representative, rendered as aforesaid, shall run against the goods and chattels of the deceased, and if none, then against the goods and chattels, lands and tenements of the representative. And all such judgments docketed in any county shall be a lien on the property for which execution is adjudged as fully as if it were against him personally.” Section 136: “If it appears at any time during, or upon, or after the taking of the account of a personal representative that his personal assets are insufficient to pay the debts of the deceased in full, and that he died seized of real property, it is the duty of the judge or clerk, [430] at the instance of any party, to issue a summons in the name of the personal representative, or of the creditors generally, to the heirs, devisees, and others in possession of the lands of the deceased, to appear and show cause why said lands should not be sold for assets,” etc. Section 75; Tucker v. Almond, ante, 333. There is a difference between (1) a defective statement of a good cause of action, and (2) a statement of.no cause of action; that is, if the complaint is wholly insufficient to make out a cause of action. N. C. Practice and Procedure in Civil Cases (McIntosh), p. 461. We think a judgment by default on the former is erroneous and must be appealed from, the latter is irregular and can be set aside in a reasonable time where merit is shown and there is no laches. Then, again, in an action against a decedent’s estate the above sections of the statute must be considered, for example, section 130: “All judgments given by a judge or clerk of the Superior Court against a personal representative for any claim against his deceased shall declare,” etc. Under the facts and circumstances of this case, we think the judgment was irregular. In Finger v. Smith, 191 N. C., 818 (819-20), it is said: “A judgment may be valid and unassailable, or it may be irregular, erroneous, or void. An irregular judgment is one rendered contrary to the course and practice of the court, as, for example, at an improper time; or against an infant without a guardian; or by the court on an issue determinable by the jury; or where a plea in bar is undisposed of; or where the debt sued on has not matured; and in other similar cases (citing authorities). . . . (p. -820) An erroneous judgment is one rendered according to the course and practice of the court, but contrary to law, or upon a mistaken view of the law, or upon an erroneous application of legal principles, as where judgment is given for one party when it should have been given for another; or where the pleadings require several issues and only one is submitted; or where the undenied allegations of the complaint are not sufficient to warrant a recovery; and in other cases involving a mistake of law,” citing numerous authorities. C. S., 600, relating to mistake, surprise, and excusable neglect, has no application on the present record. Foster v. Allison Corp., 191 N. C., 166; Wellons v. Lassiter, 200 N. C., 474 (477); Newton & Co. v. Mfq. Co., 206 N. C., 533. “To set aside a judgment for irregularity it is necessary to make a motion in the cause before the court which rendered the judgment, with notice to the other party; the objection cannot be made by appeal, or an independent action, or by collateral attack. The time for such motion is not limited to one year after the judgment is rendered, but it must be made by the party affected and within a reasonable time, to show that he has been diligent to protect his rights. The application should also show [431] that the judgment affects injuriously the rights of the party, and that he has a meritorious defense; otherwise, it would be useless to set aside the judgment.” N. C. Prac. & Proc. in Civil Cases, McIntosh, part sec. 653, pp. 736-7. In 1st Freeman on Judgments (5th Ed.), sec. 217, p. 422, it is said: “A judgment may undoubtedly be vacated for prejudicial irregularity. . . . (See. 218, pp. 424-5.) A judgment is said to be irregular whenever it is not entered in accordance with the practice and course of proceeding where it was rendered. The irregularities which have been treated as sufficient to justify the vacations of judgments are very numerous, and it is not possible to prescribe any test by which, in all jurisdictions, to determine whether or not a particular irregularity is such as to require the vacation of a judgment. When the irregularity does not go to the jurisdiction of the court, its action will be largely controlled by the promptness with which the application is made, and by the consideration whether or not the irregularity is one which could have operated to the prejudice of the applicant. . . . (Sec. 219, p. 432.) A judgment on the pleadings rendered under a misapprehension as to their allegations may be vacated for ‘irregularity.’ ” In Snow Hill Live Stock Co. v. Atkinson, 189 N. C., 250, suit was begun 24 March, 1921, tried at April Term, 1923, and judgment entered on verdict against plaintiff. Neither complaint nor answer had been filed. Plaintiff was not present and did not know of the trial until after adjournment of the court. At December Term, 1924, plaintiff’s motion to set aside the judgment was overruled by Judge Barnhill. Upon appeal, Stacy, J., reversing the decision of Judge Barnhill, said, for the Court (p. 251) : “It could hardly be maintained that this is not an irregular judgment, as it was entered contrary to the usual course and practice of the court. Becton v. Dunn, 137 N. C., 559; Gough v. Bell, 180 N. C., 268. Apparently it is based on neither allegation nor sufficient finding by the jury, and the plaintiff is taxed with the costs, which would seem to make it also an erroneous one, though an erroneous judgment should be corrected by appeal. Duffer v. Brunson, 188 N. C., p. 791.” In Knott v. Taylor, 99 N. C., 511 (515), it is said: “All irregular judgments are in a sense erroneous, but they may be set aside in a proper case for such irregularity, if application be made within a reasonable period of time. Lynn v. Lowe, 88 N. C., 478, and numerous cases there cited; Williamson v. Hartman, 92 N. C., 236; Fowler v. Poor, 93 N. C., 466.” Taylor v. Caudle, 208 N. C., 298. In White v. Snow, 71 N. C., 232 (235), a judgment is held to be irregular when “the complaint is insufficient to warrant any judgment for the plaintiff. ... A plaintiff must be careful to take only such judgment as is authorized by his complaint.” [432] Under tbe facts and circumstances of tbis case, we think that tbe judgment was irregular, tbe time in which tbe motion was made reasonable, and tbe applicant has a meritorious defense. Eor tbe reasons given, tbe judgment of the court below must be Reversed. Devin, J., took no part in tbe consideration or decision of tbis case.