Currituck County NcArchives Court.....Dozier, V. Executor Of Simmons 1825
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 25, 2009, 1:36 pm

Source: Nc Reports, Vol 11, 1897
Written: 1825

December Term, 1825

DOZIER v. EXECUTOR OF SIMMONS. 

From Currituck.

The distributees of A filed a petition against the administrator of A, and 
charged in the petition that B, one of the children of A, had been advanced by 
his father in his life time, and made him a defendant in the petition. In the 
County Court, a jury found that B had been advanced: B removed the proceedings 
by certiorari to the Superior Court, where, after reference to the clerk of 
the matters of account, the suit as to the petitioners was settled and 
disposed of; and so much of the case as related to the advancement of B was 
referred to arbitrators, who decided that B was entitled to receive a certain 
portion of his father's estate; and when this award was returned, on motion 
judgment was rendered for the sum stated to be due, in favour of B against the 
administrator, without objection;-Held, that the circumstances under which the 
judgment was rendered were such as made the judgment substantially just, as 
much so as if B had been one of the petitioners instead of a defendant; and as 
B had issued a sci. fa. to the administrator on this judgment, if the 
administrator had any substantial plea he might urge it against the sci. fa.

The distributees of James Dozier, deceased, filed a petition against Mitchell 
Simmons, as administrator of Dozier, for their shares of the estate. The 
petition stated, that Enoch Dozier (who was the plaintiff in this proceeding) 
was one of the distributees, and had been advanced by James Dozier in his life 
time, and he was made a defendant in the petition. Enoch Dozier, in his 
answer, denied the advancement; and Simmons, in his answer, expressed his (27) 
readiness to pay the estate to whomsoever the Court might direct. In the 
County Court, an issue was submitted to a jury as to the advancement of Enoch 
Dozier, who found that he had received by way of advancement $524 60.

Afterwards, Enoch Dozier obtained a certiorari, and the proceedings were 
thereby removed into the Superior Court, where it was referred to the clerk to 
take a general account of James Dozier's estate, and when the account was 
taken, Simmons handed in his vouchers and they were allowed. There was no 
dispute as to the claim of the petitioners; and after the report of the clerk, 
the matter as to them was settled, and so much of the case as related to Enoch 
Dozier's interest in his father's estate was referred to arbitrators, who 
decided that Enoch Dozier was entitled to $282 67. When this award was brought 
into Court, on motion, a judgment was rendered for that sum in favor of Enoch 
Dozier aganist the administrator of James Dozier.

There was no petition or cross bill filed by Enoch Dozier to have the benefit 
of the award before judgment was entered for the amount. On this judgment in 
favor of Enoch Dozier a fi. fa. issued against the goods and chattels of James 
Dozier in the hands of Simmons, his administrator, to which the sheriff 
returned that there was nothing to be found. Enoch Dozier then issued a sci. 
fa. to the executors of Simmons, who had died, calling on them to show cause 
why execution should not issue against the proper goods and chattels of 
Simmons; to this sci. fa. the defendants pleaded nul tiel record, with several 
other pleas, all of which were found by the jury in favor of Enoch Dozier; and 
on the plea of nul tiel record, the Court, Daniel, Judge, presiding, was of 
opinion, that there was a judgment of record as the sci. fa. alleged; and 
although the entering up of the same had been somewhat irregular, yet it was 
not to be avoided by the present plea.

(28) The defendant then asked leave to file a petition to vacate or set aside 
the judgment, which the Court refused, and gave judgment that Enoch Dozier 
have execution against the proper goods and chattels of Simmons, in the hands 
of the defendants, whereupon defendants appealed.

L. Martin, for defendants.

1. I contend in this case, that the present plaintiff was a defendant only in 
the whole of the proceedings to which this suit refers; and that being a 
defendant, he is not entitled to a judgment or decree until he files a cross 
bill; because no party can recover of another, otherwise than according to the 
allegations in their complaint and proof of the facts alleged.

2. That the matters in controversy, on which the plaintiff obtained the 
certiorari, were wholly between the petitioners and himself, the said Simmons 
not being a petitioner.

3. That the matters referred to the arbitrators were wholly between the 
present plaintiff and the petitioners; and that the award did not, nor could 
not, effect Simmons at all; Simmons not being, as to the points referred, a 
party litigant.

4. That Simmons was never made a party to the proceedings by certiorari, and 
had no interest in the matters controverted in it.

5. That there were two fi. fas. issued to make the money on the award; and 
that although the first was returned nothing to be found, yet the second one, 
issued for the same purpose, was set aside for irregularity, as appears on the 
record; and, therefore, could not lay a foundation for the sci. fa. in the 
present suit.

6. There was no such record as is recited in the sci. fa. on which to found 
the judgment rendered by the Court.

7. That when the plaintiff proceeds to recover by petition or bill in equity, 
then the defendants can show all facts necessary to their defence; but if he 
is allowed to proceed on the award, which the defendants contend (29) does not 
bind them, then the defendants are estopped by the award to contest the 
validity of the plaintiff's claim.

Hall, Judge. — I think the circumstances under which this judgment was 
entered, were as favorable to both parties, and answered the ends of justice 
between them, as well as if the person to whom the judgment was confessed had 
been one of the petitioners. 'Tis true he was a defendant in the original 
proceedings; but the subject matter of the petition had, by consent, been 
referred, and when the award was returned, the present defendant's intestate 
agreed that judgment should be entered against, him for the amount awarded in 
his favor, and no objection was made by any of the parties interested in the 
distribution of the estate. I can see no objection to the judgment, more than 
if it had been confessed by the defendant in a more formal manner at any other 
time. If the present defendant has any plea to enter in his representative 
character, he might have done so on the return of the scire facias; but I 
think he is bound by the judgment confessed by his intestate, and that the 
judgment of the Superior Court should be affirmed.

The other Judges assenting,

Judgment affirmed.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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