Donnelly v. . Wilcox

18 S.E. 339, 113 N.C. 408

• Court: Supreme Court of North Carolina
• Decided: September 5, 1893
• Status: Published

Opinion

Clark, J.:

The Clerk of the Superior Court had jurisdiction of the proceeding against the guardian for a settlement. The Code, § 1619; Rowland v. Thompson, 64 N. C., 714; Rowland v. Thompson, 65 N. C., 110; Sudderth v. McCombs, 65 N. C., 186 (which also holds that the Superior Court at term would not have original jurisdiction of such action); McNeill v. Hodges, 105 N. C., 52. The judgment rendered by the Clerk in the former proceeding was between the same parties and upon the same question now litigated, and is an estoppel to the present action (Williams v. Clouse, 91 N. C., 322; Collins v. Smith, 109 N. C., 468), unless impeached for fraud by a direct proceeding. It can make no difference that the decree ■was rendered by consent. It seems to have been regular and formal. That action was instituted to procure a settlement from defendant of the balance due by him as guardian, and the notice therein was issued at the instance of the plaintiff. The pleadings in this action do not impeach and attack said judgment as fraudulent, but assail and impeach a receipt given by plaintiffs to defendant for the balance found by the decree to be due and directed to be paid. The amount admitted by the complaint to have been paid was the exact amount of the judgment, and his Honor properly held that the judg ment could not be attacked collaterally, and that it had not been impeached by the pleadings.

We are not advised why the plaintiffs did not thereupon ask an amendment, which lay in the discretion of the Court (The Code, § 273), so as to assail the judgment itself for fraud. The judgment of nonsuit must be Affirmed.