Moseley v. . Johnson , 144 N.C. 257 ( 1907 )

SAME CASE — MOTION. Since the opinion of this Court was handed down in these appeals, Howard Peden moves the Court to permit him to be made a party defendant and to reform the judgment of the Superior Court, which has been affirmed, so that the judgment will declare that the distributive share of Howard Peden, as set down in the record, is subject to a payment of $1,000 by A. C. Davis, attorney for the United States Fidelity and Guaranty Company, and that said distributive share is the property of said Peden, and not of said Davis.

We see no merit in this motion. Howard Peden is a defendant (278) in this action and W. M. Peden a plaintiff. It is stated in the record that "It is admitted that A. C. Davis is the owner by assignment of the claims and demands of Howard Peden and W. M. Peden against W. A. Johnson, administrator in this action; and the defendants move that said A. C. Davis be made a party defendant and allowed to file an answer setting up his rights."

The referees undertook to allow a nonsuit as to W. M. Peden and a nol.pros. as to the defendant Howard Peden, and refused to allow Davis to be made a party. As it is an action for the settlement of an estate, the action of the referees was erroneous, and his Honor very properly reversed their ruling. Davis was brought in and set up and established his claim to the ownership of the distributive shares of the two above named Pedens. Howard Peden admitted in his testimony that the assignment was made to Davis individually. If he desired to contest the assignment of it to Davis, he should have done so before the referees or the Superior Court, when he had an opportunity. He took no exception to the ruling or judgment of the Superior Court, and he is now bound by its action. He voluntarily assigned his share to Davis and permitted him to come in and take his place. It is now too late for either of the two Pedens to complain.

Motion denied.

Cited: Aden v. Doub, 146 N.C. 13; Green v. Dunn, 162 N.C. 342.

(279)