Houston v. . Dalton

70 N.C. 662

• Court: Supreme Court of North Carolina
• Decided: January 5, 1874
• Status: Published

Opinion

ByNum, J.

Upon the coming in of the answer, the plaintiff' moved to set aside the decree .made in another suit, confirming the report of the settlement of the estate of Placebo Houston, which it was the purpose of this action to surcharge and falsify. His Honor refused the motion. The defendant then moved to dismiss the action for want of jurisdiction, which motion was allowed and the action dismissed. The plaintiff appealed from both rulings.

1. The first exception is untenable-, because the answer denies every material allegation of the complaint, upon which 'the-plaintiff bases his equity to have the account and settlement of the estate reopened.

When material issues are thus raised by the pleadings, both of fact and law, the issues of fact must be tried in one of the modes prescribed in C. O. P., before this motion of plaintiff' can be entertained.

2. But his Honor dismissed the action for want of jurisdiction. In this there was error.

The allegations of the complaint present a ease of equitable-jurisdiction only, according to our old judicial system, and’ when such is the case, the action is properly instituted in the Superior Court. So a bill to surcharge and falsify an account,, which is the- nature of the action now before us, was always brought in the Court of Equity. Adams’ Eq., 222; Murphy v. McCubbins, 65 N. C., 246.

Holding, therefore, that the action is instituted in the proper-Court, it is not necessary to examine the effect of the acts of 1870-71, chap. 108, and of 1872-73, chap. 175, in curing all-irregularities of jurisdiction. This Court, however, has decided that they are effectual for such purpose.

The judgment will be reversed and the cause remanded, to the end that the parties may pi’oceed as they are advised. We-express no opinion upon the merits- of the case.

Peheí Cubiam., Judgment reversed»