Yancey County NcArchives Court.....C. H. Byrd, E. K. Byrd Et Al V. 1895
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File contributed for use in USGenWeb Archives by:
Connie Ardrey n/a January 11, 2010, 7:33 pm

Source: Nc Reports
Written: 1895

E. K. Byrd et al v. C. H. Byrd, Administrator of Charles Byrd
September Term, 1895

1. The heirs or next of kin of a decedent have no right to be made parties to 
an action on account against the administrator, although they allege collusion 
between the plaintiff and the administrator.

2. Where, at the term at which the action stood for trial, the heirs of the 
decedent were, by consent of the administrator, made parties to an action by a 
creditor against him to recover a debt alleged to be due by the decedent, such 
consent by the administrator being upon the condition that they should not 
plead the statute of limitation, they had no right to interpose such plea or 
any other, without the consent of the court.

This was a Civil Action, brought by the plaintiff against the defendant, to 
recover judgment for $268.00, being an action simply to ascertain the debt, 
and heard by Timberlake, Judge, at Spring Term, 1895, of Yancey Court, on a 
motion made by J. C. Byrd and A. J. Burton, the husbands of two of the heirs-
at-law of the defendant's intestate, C. H. Byrd, to make the heirs-at-law of 
said intestate parties defendant in said action and allow them to defend the 
same. The motion was resisted by both plaintiffs and defendant for the reason 
that the said heirs-at-law were in no way necessary parties. They both offered 
to consent that the said heirs-at-law might be made parties and make any 
defence other than plead statute of limitation, which offer the said A. J. 
Burton and J. C. Byrd declined.

His Honor made the following order:

"The heirs-at-law of Charles Byrd, the intestate of defendant administrator, 
having asked leave of court to make themselves parties defendant and the court 
having ordered that the heirs be allowed to make themselves parties defendant, 
on condition that they do not set up as a defence the statute of limitation, 
and the said heirs having refused to become parties on such condition: It is 
ordered that the request of said heirs be not granted and that they shall not 
be made parties defendant to this action."

To this refusal, the said Burton and J. C. Byrd excepted and appealed.

Mr. E. J. Justice, for plaintiff
No counsel, contra

[NC Supreme Court]
Furches, J. ...as affiants had no right to make themselves parties, they had 
no right to appeal. And their appeal must be dismissed.

Dismissed.

[See court case for Judge Furches' complete findings]

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