This was an issue of devisavit vel non, made up and tried in the County Court, where a verdict was found in favor of the propounders of the will. It was afterwards carried by the caveator, Ransom Woolard, to the Superior Court by a writ of *Page 236 certiorari, upon his entering into bond with Thomas Latham and David P. Perry as his sureties. In the Superior Court the issue came on to be tried at Pitt, on the last circuit, when the jury found a verdict establishing the will. Immediately after the entry of the verdict upon the record appears the following: "Death of Ransom Woolard suggested by Thomas Latham and D. P. Perry. On motion, judgment against Thomas Latham and D. P. Perry, obligors in the certiorari bond, for the costs to be taxed by the clerk, from which judgment Thomas Latham, and D. P. Perry pray an appeal to the Supreme Court, which is granted." Then follows the usual order for certifying the probate of the will to the County Court, etc. We cannot discover any error in the judgment rendered against the defendants Latham and Perry. One of their objections to it is that their principal was dead at the time when the judgment was given, and that it could not regularly be entered up instanter upon the appeal bond, without making his personal representative a party. There are two decisive answers to this objection. The first is that we have no judicial knowledge that the principal was dead. His sureties were no parties to the suit, and had, therefore, no right to suggest his death, and the entry of their suggestion on the record is a mere nullity. But if this were not so, and the death of the principal were properly brought to our notice, we are bound to assume that he died after the commencement, of the term at which the issue was tried, and when the suggestion of his death was made. Upon no other supposition can the proceeding of the court in trying the issue and ordering the certificate of the probate to be sent to the County Court be upheld; for if the caveator died before the commencement of the term, the verdict and judgment were rendered against a dead man, and therefore erroneous, which we are not to presume. Another objection to the judgment is that, supposing their principal died after the commencement of the term, judgment ought to have been rendered against him as well as against the sureties upon the appeal bond. The prevailing party may pursue that course if he chooses, but is not bound to do so. He may take a judgment against the principal upon his liability as a party to the suit, and then another and a separate judgment against the sureties on the appeal *Page 237 bond. If he choose to pursue the latter course, the sureties have thereby no greater burthen thrown upon them, and therefore have no right to complain. (324)
PER CURIAM. Judgment affirmed.
Cited: Cohoon v. Morton, 49 N.C. 257.