Knight v. Fidelity & Cas. Co. of New York
| Decision Date | 19 July 1937 |
| Docket Number | 14516. |
| Citation | 192 S.E. 558,184 S.C. 362 |
| Parties | KNIGHT et al. v. FIDELITY & CASUALTY CO. OF NEW YORK. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Chesterfield County; E. C Dennis, Judge.
Action by Ervin Knight, Bessie Knight Lowry, and others against the Fidelity & Casualty Company of New York. Judgment overruling defendant's demurrer, and overruling defendant's motion to dismiss the complaint except as to the second named plaintiff, as to whom it was granted, and the defendant and the second named plaintiff appeal.
Reversed and complaint dismissed.
Leppard & Leppard, of Chesterfield, for plaintiffs-respondents-appellants.
Willcox Hardee & Wallace, of Florence, for defendant-appellant-respondent.
It appears from the transcript of record that Barney E. Knight of Union county, N. C., was a soldier in the service of the United States; that he had what is known as war risk insurance in the sum of $10,000, with his mother Mollie Knight as beneficiary. He died the 29th day of October, 1918 intestate, leaving, him surviving, as his only heirs at law and distributees, his father, William T. Knight, his mother, Mollie Knight, and his brothers and sisters, the plaintiffs in this action. That from the insurance, the government paid to Mollie Knight the sum of $57.50 per month up to the time of her death, which occurred in September, 1925. She died intestate, leaving her surviving as her only heirs at law and distributees, her husband, William T. Knight, and her children, the plaintiffs in this action. At the time of her death Mollie Knight was a resident of Union county, N.C. On or about the 20th day of October, 1925, William T. Knight, then a resident of Union county, N. C., was duly appointed by the clerk of the superior court of Union county, acting as judge of probate, administrator of the personal estate of Barney E. Knight, and qualified with the defendant, the Fidelity & Casualty Company of New York, as his surety in the sum of $15,000, with the usual conditions of obligation. After the death of Mollie Knight, the government paid to William T. Knight, as the administrator of the estate of Barney E. Knight, the sum of $7,352.50 as the commuted value of the policy of insurance on the life of Barney E. Knight, which money was the only asset of the said decedent.
It is alleged in the complaint that William T. Knight, as such administrator, duly administered the estate of Barney E. Knight, except that he did not distribute the money thus paid him as the commuted value of the policy of insurance, to the heirs at law of Barney E. Knight and Mollie Knight.
It is further alleged in the complaint that the insurance money, on the death of Barney E. Knight, was payable to his father and mother in equal amounts, and that upon the death of Mollie Knight the plaintiffs became entitled to four-fifths of the sum paid to William T. Knight as administrator of Barney E. Knight.
It is further alleged in the complaint that William T. Knight, in breach of his duty, filed in the office of the clerk of the superior court of Union county, N. C., a false and fictitious account of his actings and doings as such administrator, wherein he alleged that he had paid unto each of these plaintiffs, as their respective distributive shares of said insurance money, the sum of $980.33, whereas he had and has not paid to them, or any of them, any part of said sum, but appropriated and converted all of said insurance money to his own personal use.
Thereafter William T. Knight, in 1933, died while residing in Union county, N. C., and there has been no administration of his estate.
This action is brought by the plaintiffs against the defendant as surety on the bond of William T. Knight, as administrator of the estate of Barney E. Knight, to recover the sum thus alleged to be due them.
On motion of the defendant, the action was dismissed as to Bessie Knight Lowry on the ground that she is a resident of the state of North Carolina and cannot maintain this action because the cause of action arose in the state of North Carolina and the subject of the action is situate in that state.
The defendant gave notice of a motion to dismiss the complaint on the grounds that:
"1. That plaintiffs were not at the time of the institution of this action, and are not now, residents and citizens of Chesterfield County, State of South Carolina, and that the complaint shows that the cause of action did not arise in the State of South Carolina, nor is the subject of the action situate in this State, and it appears from the complaint that the defendant is a foreign corporation.
2. That it appears from tthe complaint in this action that the subject of the action is an administration proceeding now pending before the clerk of the superior court of the general jurisdiction of the State of North Carolina aforesaid, which court has exclusive jurisdiction of said matters, and of the parties to this action.
Affidavit of J. B. Walker:
State of South Carolina, County of Chesterfield:
Personally appeared before me, J. B. Walker, who, being duly sworn says that he has known the plaintiff Bessie Knight Lowry one year, and that plaintiff is now and has been for one year, resident of Union County, State of North Carolina.
J. B. Walker.
Subscribed and sworn to before me this 2nd day of May, 1936.
J. F. Richardson, Notary Public, Chesterfield County, South Carolina."
The defendant demurred to the complaint on the following grounds:
"1. It appears from the complaint in this action that the subject of the action is an administrative proceeding now pending before the clerk of the superior court of Union County, North Carolina, as a probate proceeding, a court of general jurisdiction in the State of North Carolina aforesaid, which Court has exclusive jurisdiction of the matters and of the parties to this action.
2. That there is a misjoinder of causes of action in that the cause of action, if any, in favor of each of the plaintiffs is a separate and distinct cause of action and demand on his or her part against the defendant, and that the plaintiffs have no joint demand or joint cause of action against the defendant.
3. That it appears from the complaint in this action that the plaintiffs are merely distributees of an estate, and that as such they have no right to maintain this action upon the bond of the administrator of the estate of Barney Knight, such action, if any, being a right which can be examined only by an administrator de bonis non of the estate of said deceased.
4. That it appears from the complaint in this action that there is a defect of parties plaintiff in that the named plaintiffs are merely distributees of an estate and that the administrator de bonis non of the estate of Barney E. Knight is a necessary party plaintiff in the action.
5. That it appears from the complaint in this action that the plaintiffs are distributees of the estate of Mollie Knight, deceased, and that as such they have no right to maintain this action upon the bond of the administrator of the estate of Barney E. Knight, such action, if any, being a right in the administrator of the estate of the said Mollie Knight, deceased."
The motion to dismiss the complaint and the demurrer were heard by Judge Dennis, who, in an order duly filed, dismissed the motion to dismiss the complaint, except as to Bessie Knight Lowry; as to her it was granted. He overruled all the grounds of the demurrer, except the second, which relates to a misjoinder of actions; this he sustained, but gave plaintiffs leave to separate the cause of action into three causes of action by the three remaining plaintiffs.
From this order, the defendant appealed on four exceptions, to wit:
1. Error to hold that the plaintiffs as heirs at law of Mollie Knight have the right to maintain this action upon the bond of William T. Knight as the administrator of Barney E. Knight.
2. Error to overrule the motion to dismiss the complaint, and the demurrer, because it appears from the complaint that the subject of the action is an administration proceeding pending before the clerk of the superior court of Union county, N. C., as a probate proceeding, which is a court of general jurisdiction of the state of North Carolina, which has exclusive jurisdiction of such matters and the parties to this action, hence this court in which the action is brought is without jurisdiction to try the case.
3. Error to hold that plaintiffs have the right to maintain this action in the court of common pleas for Chesterfield county, S. C., because in view of section 465, North Carolina Consolidated Statutes, an action on the bond of William T. Knight, as administrator, could only be brought in Union county, N. C., of which place William T. Knight was a resident, and in which the defendant the Fidelity & Casualty Company is found.
4. Error to hold that plaintiffs have the right to maintain this action in the court of common pleas for Chesterfield county, S. C., because said court had no jurisdiction of the subject-matter of the controversy, therefore, this court had no jurisdiction of the defendant surety company, as such surety, since the court would have no jurisdiction of the principal on the surety bond.
Bessie Knight Lowry appeals upon two exceptions, to wit:
1. Error to dismiss the complaint as to her because under the provisions of section 2, article 4, of the Federal Constitution, and section 688 of 28 U.S.C.A., the courts of a state are required to entertain an action brought by a nonresident of one state against a nonresident defendant; and because a nonresident may join a plaintiff in an action brought by a resident of the state in which the action brought is against...
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