Bohannon v. Wachovia Bank & Trust Co

Decision Date25 November 1936
Docket NumberNo. 529.,529.
Citation188 S.E. 390,210 N.C. 679
CourtNorth Carolina Supreme Court
PartiesBOHANNON . v. WACHOVIA BANK & TRUST CO. et al.

stacy, c. J., and connor, J., dissenting.

Appeal from Superior Court, Mecklenburg County; G. V. Cowper, Special Judge.

Suit by Ernest F. Bohannon, Jr., against the Wachovia Bank & Trust Company, executor and trustee of Laura Webb Bohannon, and Maude Bohannon Trotman. From a judgment of the superior court affirming the order of the clerk of the superior court denying the defendants' motion for a change of venue, and from a judgment affirming the order of the clerk denying the motion of the defendants to set aside vari-ous orders in reference to the examination of the defendant Maude Bohannon Trot-man, the defendants appeal.

Affirmed.

The summons in this action was issued June 15, 1936, and served on defendants June 16, 1936. Time for filing complaint of plaintiff was duly allowed. The following affidavit and amended affidavit of plaintiff were filed in the action:

"Ernest F. Bohannon, Jr., plaintiff, being duly sworn, says:

"1. That this action is brought for the recovery of damages from the defendants upon the ground that Laura Webb Bohannon and Maude Bohannon Trotman, by a conspiracy and false and fraudulent representations, deprived the plaintiff of a share in the estate of F. M. Bohannon which would have been given him except for the wrongful acts of the defendants; that summons has been issued in this action and an extension of time to file, complaint has been granted to July 3rd, 1936.

"2. That the defendant Maude Bohannon Trotman, as the plaintiff is informed and believes, has certain facts within her knowledge, which facts are not otherwise available to the plaintiff and which facts are material to the plaintiff's case; that it is necessary for the plaintiff to examine said defendant in order to obtain said information and to enable him to properly draft and file his complaint against the defendants in this action; that the said information is peculiarly within the knowledge of the defendant Maude Bohannon Trotman, and the plaintiff seeks said information in good faith for the purpose of enabling him to file his complaint, and that this affidavit is not made for the purpose of vexation or harassment.

"Wherefore, the plaintiff prays that an order issue in this cause, requiring the defendant Maude Bohannon Trotman to be and appear before a Commissioner appointed by the Court and give evidence necessary and required by the plaintiff for the purpose of filing his complaint, and that notice issue and be served upon the defendants, giving the defendants at least 5 days notice of said examination.

"Ernest F. Bohannon, Jr., Affiant." (Sworn to June 26, 1936.)

"Ernest F. Bohannon, Jr., plaintiff, being duly sworn, says:

"1. That he has instituted this action for the recovery of damages from the defend ants, upon the ground that Laura Webb Bohannon and Maude Bohannon Trotman conspired to deprive the plaintiff of a share of the estate of his grandfather, F. M. Bohannon, and by false and fraudulent representations made to the said F. M. Bohannon, and by fraud practiced upon him and upon this plaintiff, prevailed upon the said F. M. Bohannon to change a definite plan which he had made to leave to the plaintiff either by will or a trust instrument a large share in his estate; that summons has been issued in this action.

"2. That the plaintiff now has information upon which to base an allegation in his complaint that F. M. Bohannon had formed the fixed intention and settled purpose of providing for the plaintiff in the distribution of his estate, and would have carried out this intention and purpose but for the wrongful acts of Laura Webb Bohannon and Maude Bohannon Trotman; however, the plaintiff does not know definitely whether or not the said F. M. Bohannon actually made a will providing for this plaintiff, or a trust instrument giving him a part of his estate, which will or trust instrument he was caused to revoke by the wrongful acts of the defendants, and that the facts in regard thereto are peculiarly within the knowledge of the defendant, Maude Bohannon Trotman; that said facts are material to the plaintiff's cause and are not otherwise available to the plaintiff except by an examination of said defendant. The plaintiff has information as to certain wrongful acts and misrepresentations made by Laura Webb Bohannon and Maude Bohannon Trotman calculated to influence the said F. M. Bohannon against the plaintiff, which acts were done and statements made in the presence of other persons. However, the plaintiff believes that other acts were done and statements made by Laura Webb Bohannon and Maude Bohannon Trotman when no one was present except the said persons and F. M. Bohannon; that the facts in regard thereto are peculiarly within the knowledge of the defendant, Maude Bohannon Trotman, and are not otherwise available to the plaintiff except by an examination of said defendant, both F. M. and Laura Webb Bohannon being dead; that the application of the plaintiff heretofore made to examine the defendant, Maude Bohannon Trotman, was made for the purpose, in good faith, of obtaining the information hereinbefore outlined and which is peculiarly within the knowledge of Maude Bohannon Trotman for the purpose of enabling theplaintiff to properly file his complaint, and that this amended affidavit is made to set out more fully the information sought, and the necessity therefor, and this affidavit is not made for the purpose of vexation or harassment.

"Wherefore, the plaintiff prays that the motion of the defendant, Maude Bohannon Trotman, to vacate the order of examination be denied, and that she be required to appear and be examined in accordance with the orders heretofore made herein.

"Ernest F. Bohannon, Jr."

(Sworn and subscribed to August 27, 1936.)

Under the above set forth affidavits, an order was made by the clerk of the superior court to examine the defendant Maude Bohannon Trotman. The defendants excepted and assigned error to the order and appealed to the superior court. The orders in the court below were as follows:

"This cause coming on to be heard before the undersigned Judge Presiding at the September 14th, 1936 Extra Term of Mecklenburg Superior Court, upon the appeal of the defendants from the order of the Clerk, dated September 2nd, 1936, in which the Clerk denied the motion of the defendants to set aside various orders in reference to the examination of the defendant, Maude Bohannon Trotman, and upon a consideration of the original affidavit and the amended affidavit filed by the plaintiff, the Court being of the opinion that the plaintiff is entitled to examine the defendant, Maude Bohannon Trotman, for the purpose of obtaining the information referred to in said affidavits to enable him to properly file his complaint.

"It is thereupon Ordered that the order of the Clerk be, and is hereby affirmed, and the motion of the defendants to set aside the orders in reference to the examination of the defendant, Maude Bohannon Trotman, is denied; and it is further ordered that the Commissioner heretofore appointed by the Clerk proceed to hold said examination at the office of the Clerk of the Superior Court of Forsyth County, or such other place as may be designated by the Commissioner, at 11 A. M. on the 16th day of October, 1936, unless the time is changed by consent of the parties. This 22 day of September, 1936.

"G. V. Cowper, Judge Presiding."

"Order (of Cowper, Special J.) This cause coming on to be heard before the undersigned Judge Presiding, at the September 14th, 1936, Extra Term of Mecklenburg Superior Court, upon the appeal of the defendants from the order of the Clerk denying the defendants' motion for change of venue, and the Court being of the opinion that said motion is prematurely made: It is thereupon Ordered that the order of the Clerk in reference to change of venue be, and it hereby is denied, with leave, however, to the defendants to renew said motion after the complaint is filed. This 22 day of September, 1936.

"G. V. Cowper, Judge Presiding."

The defendants excepted and assigned error as follows: "The Judge of the Superior Court erred in affirming the judgment of the Clerk of the Superior Court for Mecklenburg County denying the defendants' motion that the action be removed to the Superior Court for Forsyth County, under section 465, C.S., for that the defendants say that it sufficiently appears from the application for extension of time in which to file complaint that the action is against the defendant, Wachovia Bank & Trust Company, Trustee and Executor of the Estate of Laura Webb Bohannon, deceased, in its representative and official capacity as such Executor and Trustee, and that it is unnecessary to wait the filing of the complaint before making such motion. The Judge Presiding at said Term of the Superior Court erred in affirming the order of the Clerk of said Court, dated September 22nd, 1936, denying the motion of the defendants to set aside various orders in reference to the examination of the defendant, Maude Bohannon Trotman, for that these defendants say that the affidavits on which the application for such examination was based are insufficient, and also for that the application for such examination shows that the plaintiff is...

To continue reading

Request your trial
40 cases
  • Osguthorpe v. Rudd (In re Osguthorpe)
    • United States
    • Utah Supreme Court
    • July 1, 2021
  • Barclay v. Castruccio
    • United States
    • Court of Special Appeals of Maryland
    • June 30, 2020
  • Beckwith v. Dahl
    • United States
    • California Court of Appeals Court of Appeals
    • May 3, 2012
    ...of the tort altogether. (See Allen v. Leybourne (Fla.Dist.Ct.App.1966) 190 So.2d 825, 829;Bohannon v. Wachovia Bank & Trust Co. (1936) 210 N.C. 679, 188 S.E. 390, 393–394; Prosser & Keeton, Torts, supra, § 130, p. 1007.) Courts have dealt with this issue with respect to other interference t......
  • Beckwith v. Dahl
    • United States
    • California Court of Appeals Court of Appeals
    • May 3, 2012
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT