Swepson to the Use of Clayton v. Summey

Notice was issued to the defendant as administrator of W. A. Patton, deceased, to show cause why execution de bonis propriis should not be issued against him, judgment absolute having been rendered at Fall Term, 1867, in favor of the plaintiff on specialty filed against A. B. Chunn Co., the firm being composed of A. B. Chunn, E. Clayton and the intestate of the defendant.

After execution was issued, no plea being filed, G. W. Clayton paid off the judgment and took an assignment of the same to his own use. The notice to show cause was then issued and served. No answer to the rule was filed, and the case was continued from term to term for several years, always for the defendant, he desiring the evidence of G. W. Clayton, who resides in the county, was often there, and who has only been away from the county during the last year. The counsel alleged that a subpoena had been served upon him, but it did not appear *Page 415 in the papers. He did appear once before the Court, at Chambers, but was not examined.

No plea or suggestion of a want of assets was ever made upon the original motion for notice to issue.

It was shown to the court that the defendant had been fixed with assets to the amount of the judgment, and that the sheriff had failed to find anything in his hands.

When the case was called at Fall Term, 1875, the defendant had G. W. Clayton called, and upon his failure to answer, the defendant moved the court again to continue the case on account (552) of his absence. The motion was refused.

Upon the intimation of the court that the plaintiff was entitled to execution, the defendant's counsel then demanded a jury, and said he had no other witness.

Counsel for the plaintiff stated that he had no objection to calling a jury. Clayton was again called, and upon his failure to answer, the court ordered execution to issue against the plaintiff as prayed for. The defendant appealed. No reason is assigned by the appellant, why execution should not issue against the defendant de bonis propriis , as ordered, and we see none in the record.

There is no error. This will be certified.

PER CURIAM. Judgment affirmed.

Cited: S. v. Hovis , 76 N.C. 118 ; White v. Clark , 82 N.C. 8 ; Howell v. Ferguson , 87 N.C. 115 ; McDaniel v. Pollock , 87 N.C. 505 ; King v. Ellington , 87 N.C. 574 ; Neal v. Mace , 89 N.C. 171 ; Mott v. Ramsay , 90 N.C. 30 .