Opinion · Supreme Court of North Carolina

Pearson v. . Nesbit

12 N.C. 315

Type
Opinion
Court
Supreme Court of North Carolina
Jurisdiction
North Carolina
Date
1827-12-05
Topic
general

Henderson Judge. A suit at law, is a contest between two parties in a Court of Justise ; the one seeking, and ibeothei withholding the tiling in contest. The, same individual cannot be, at the same time, botli the person seeking and tbe person withholding. For it involves an absurdity, that a person should seek/rom him *317 self, or withhold from himself. Between a corporation and the individuals composing it, this identity does not exist, and the absurdity >bove stated is avoided ; but where, the same person is both Plaintiff and.

Citator

UpLaw has not yet analyzed Pearson v. . Nesbit. The absence of a flag is not a finding that it is good law.

Cited by
7 opinions
PEARSONv. NESBIT,12 N.C. 315(1827)
ELIZABETH PEARSON v. ALEXANDER NESBIT.
Supreme Court of North Carolina
December Term, 1827.
From Rowan.

The same person cannot be both plaintiff and defendant in the same cause. Where two executors confessed a judgment to a copartnership, of which one of them was a member,it was heldto be error in fact, and for it the judgment was reversed.
RICHMOND PEARSON appointed the present plaintiff and Jesse A. Pearson executor and executrix of his will. At the time of his death he was indebted to Alexander Nesbit Co., which consisted of the present defendant and the same Jesse A. Pearson, whom he had appointed one of his executors.
A writ issued in the name of "A. Nesbit Co.," (316) plaintiff, against "Jesse A. Pearson and Elizabeth Pearson, executor and executrix of Richmond Pearson," defendants, returnable to Fall Term, 1820, of Rowan Superior Court, when judgment was confessed thereon by the defendants. Execution issued on this judgment, and was continued until Spring Term, 1823, when a return ofnulla bona testatoriswas made. After the confession of the judgment (the case did not state when) Jesse A. Pearson died. Ascire faciason the judgment issued at the instance of Nesbit, as surviving partner, to subject the present plaintiffde bonis propriis.

At Fall Term, 1827, the present plaintiff, one of the original defendants, filed an affidavit stating that Jesse A. Pearson was both plaintiff and defendant in the first action; that she never had received any of the assets of Richmond Pearson, and moved (1) for a writ of errorcoram nobis;and if the matter assigned was not error, then (2) to set aside the judgment confessed by her and Jesse A. Pearson. The defendant pleaded (1)in nullo est erratum;(2) that if there was error, it was waived by the confession of the judgment.

On the last circuit, before his Honor,Judge Strange, an order in the alternative was made whereby the judgment was reversed for error, if errorcoram nobiswas proper; but if not, then the judgment was vacated. Upon which Nesbit appealed.
Gaston for the plaintiff.No counsel for the defendant.
HENDERSON, J.
A suit at law is a contest between two parties in a court of justice, the one seeking and the other withholding the thing in contest. The same individual cannot bePage 202at the same time both the person seeking and the person withholding; for it involves an absurdity that a person should seek from himself, or withhold from himself. Between a (317) corporation and the individuals composing it the identity does not exist, and the absurdity above stated is avoided; but where the same person is both plaintiff and defendant, in different rights, as for himself on the one side and as executor on the other, this absurdity is involved. When adversary rights, as creditor and executor, or debtor and executor, meet in the same individual, the law considers the contest as settled — at least as long as the union exists. As soon, therefore, as it appears to the court that the same individual is both plaintiff and defendant, any judgment entered up in the cause is, to say the least, erroneous, and should be reversed.

I am not prepared to say whether a writ of error or a motion to vacate is the most proper mode of proceeding in this case; but I am satisfied that a writ of error is a proper remedy, although it may not be the only proper one.

The judgment of the Superior Court reversing the original judgment must be affirmed.

PER CURIAM. Judgment of reversal affirmed.Approved: Justices v. Armstrong,14 N.C. 284;Justices v. Bonner, ib., 289;Skinner v. Moore,19 N.C. 138;Newsom v. Newsom,26 N.C. 381;Keaton v. Banks,32 N.C. 381;Sanders v. Bean,44 N.C. 318;Arrowood v.Greenwood,50 N.C. 414;Eason v. Billups,65 N.C. 216;England v.Garner,84 N.C. 212;Larkins v. Bullard,88 N.C. 35;Bank v. Griffin,107 N.C. 173.