Monger v. . Kelly , 115 N.C. 294 ( 1894 )

The first and second grounds of demurrer have been removed by the amendment of the summons and complaint. The oral suggestion of counsel here that one of these amendments was made without his knowledge, and that no order for it appears in the (295) record, cannot avail him. We are bound by the record, and upon the maxim omnia presumuntur rite acta we must take it that the amendment was regularly made below. But if there was any inadvertence in that regard, the Court could allow the amendment to be made here. The Code, sec. 965; Grant v. Rogers, 94 N.C. 755; Hodge v. R. R., 108 N.C. 24.

The third ground of demurrer is without merit. It is not requisite to show that the bond of the first administrator had been sued and exhausted. This would be to unconscionably delay the creditors of the estate who are entitled to be paid. The petition is sufficient in law. Shields v.McDowell, 82 N.C. 137; Brittain v. Dickson, 104 N.C. 547.

No error.