Opinion
(February Term, 1896.)
ACTION AGAINST ADMINISTRATOR — VENUE — REMOVAL.
1. Since, under section 193 of The Code, all actions against administrators, etc., in their official capacity, must be brought in the county where the bonds were given, if the principal or any of the sureties reside therein, an action brought by plaintiffs residing in R. County against an administrator who gave bond and resides in M. County was properly removed to the latter county for trial.
2. When the only cause of action alleged in a complaint is that the defendant, as administrator, neglected and failed to discharge his duties as such, the action can be considered only as brought against him in his official capacity.
MOTION in an action pending in RUTHERFORD, at Fall Term, 1895.
McBrayer Eaves for plaintiff.
No counsel contra.
As appears from the complaint filed in this cause, the plaintiffs are the widow and one of the heirs at law of P. B. Morgan, deceased, and the defendant is the administrator of the said P. B. Morgan, deceased, having administered on the estate of P. B. Morgan, in the county of McDowell, in 1886. It further appears from the complaint in this action, that the plaintiffs claim the sum of ............dollars to be due them from the defendant, by reason of his wrongful conversion of funds coming into his hand as administrator, as aforesaid, and also by reason of his negligence in failing to collect certain evidences of debt due the estate of the said P. B. Morgan, deceased.
It is admitted by the parties that the plaintiffs reside in Rutherford County, and the defendant, J. L. Morgan, administrator of the said P. B. Morgan, deceased, and his bondsmen upon his administration bond, do now reside and have since, prior to 1886, resided in (750) McDowell, in which said county the letters of administration of the said P. B. Morgan were issued.
"The defendant is apt time made his motion for the removal of this cause to the county of McDowell for trial. The motion was allowed, and Timberlake, J., signed the following order:
"This cause coming on to be heard against the defendant, who is a resident of McDowell County, and upon a motion of defendant to remove the cause to McDowell County for trial, and it appearing to the court from the complaint that the proper venue in this action is in McDowell County, it is considered that the cause be removed to McDowell County for trial, and the clerk of this court will make a transcript of the papers in the case and transmit them to the Clerk of the Superior Court of McDowell County, who shall place this cause upon the civil-issue docket for trial."
It appears from the summons that the action was brought against the defendant, J. L. Morgan, in his individual capacity, and his bondsmen on his administration bond are not parties to the action.
From said order of Timberlake, J., plaintiffs appealed.
The judgment ordering the removal of this action from Rutherford to McDowell County for trial must be sustained. We see no reason for distinguishing it from Stanly v. Mason, 69 N.C. 1; Foy v. Morehead, 69 N.C. 512; Bidwell v. King, 71 N.C. 287.
But it is contended that the cases cited do not apply to this case, under section 193, which is claimed to be an amendment of section 192 of The Code of Civil Procedure, and Clark v. (751) Peebles, 100 N.C. 348, is cited as authority for this contention. It is true that Clark v. Peebles discusses the change of the word "fiduciary" into the word "official," but it quotes Stanly v. Mason, Foy v. Morehead and Bidwell v. King, supra, approvingly. And there is no intimation in the opinion that this slight verbal alteration has changed the law, as announced in these opinions.
If we understand the ground upon which the judgment of the Court is based in Clark v. Peebles, supra; it is that none of the defendants in that case lived in Northampton County. So, if that case announces a doctrine differing from the former decisions of this Court (and we do not understand it does), it does not sustain plaintiff's contention in this case. Here the administration was in McDowell County, where the defendant then and now resides.
The case states that "it appears from the summons that the action was brought against the defendant, J. L. Morgan, in his individual capacity." This must mean that the defendant alone was sued — that he is the only individual sued; but as the only ground of complaint — cause of action — alleged against him is that, as administrator, he neglected and failed to collect in the assets of the estate, and to account and pay the over, as the law required, this is certainly an action against him in his "official" capacity for not discharging the duties of his office as administrator according to law.
Affirmed.
Cited: Farmer's Alliance v. Murrell, 119 N.C. 126; S. v. Snow, 121 N.C. 673.
(752)