Bradshaw v. Citizens' Bank Of Burnsville

• Citation: 175 N.C. 21,94 S.E. 674
• Decision Date: 23 December 1917
• Docket Number: (No. 520.)
• Court: United States State Supreme Court of North Carolina
• Parties: BRADSHAW et al. v. CITIZENS' BANK OF BURNSVILLE et al.

94 S.E. 674

(175 N.C. 21)

BRADSHAW et al.

v.CITIZENS' BANK OF BURNSVILLE et al.

(No. 520.)

Supreme Court of North Carolina.

Dec. 23, 1917.

Appeal from Superior' Court, Mitchell County; Carter, Judge.

Action by Atlas Bradshaw and others against the Citizens' Bank of Burnsville and others. The action was dismissed, and plaintiffs appeal. Reversed. \

See, also, 172 N. C. 632, 90 S. E. 789.

In the answer defendants pleaded the pendency of another action pending in the superior court of Yancey county in bar of the prosecution of this. The court sustained the motion to dismiss the action upon the face of the pleadings, and plaintiffs appealed.

Pless & Wlnborne, of Marion, W. C. Newland, of Lenior, W. L. Lambert, of Bakersville, and S. J. Ervin, of Morganton, for appellants.

Merrimon, Adams & Johnston, of Asheville, J. Bis Ray, of Burnsville, Hudgins & Watson, of Marion, and Chas. Hutchins, of Burnsville, for appellees.

BROWN, J. The action which the defendants pleaded in bar of the prosecution of this action is entitled Lillie Phillips et al. v. J. B. Hensley et al., Executors of B. S. Hensley, 94 S. E. 673, and was decided in an opinion by the writer at present session of this court The opinion is referred for a statement of the facts as explanatory of this case.

It will be seen that the aforesaid case was a proceeding instituted before the clerk of the superior court of Yancey county for the purpose of passing upon and auditing the final account of the executors of B. S. Hensley. The proceeding was brought into the superior court by appeal, and heard and determined therein upon the sole question as to whether the executors were entitled to a credit for $14,000, being a note they claim-ed to have paid in full to the Citizens' Bank of Burnsville. The defendant was not a party to that proceeding, and had no interest in it.

The plaintiffs in this action are the distributees and devisees of B. S. Hensley and the defendants are his executors and the said bank. The executors are made parties as the personal representatives of the estate.

The complaint alleges that the executors wrongfully paid said $14,000 note; that such payment was induced by the fraud, collusion, and conspiracy of the officers of the bank with J. B. Hensley, the managing and controlling executor, who had been cashier of said bank, and as such had embezzled large sums of the bank's money. The complaint alleges:

"That the said bank in this conspiracy to take the property of the distributees and heirs at law of the said B. S. Hensley and in the execution of said conspiracy so entered into with James B. Hensley took property of the estate of B. S. Hensley, of which the said bank...