Lynn v. Clark, 313
| Decision Date | 12 April 1961 |
| Docket Number | No. 313,313 |
| Citation | 254 N.C. 460,119 S.E.2d 187 |
| Court | North Carolina Supreme Court |
| Parties | R. C. LYNN, Administrator of the Estate of David Lee Lynn, deceased, v. Mildred M. CLARK and William L. Clark, Administrator of Charles Clark, deceased. |
W. Harold Mitchell, Valdese, John H. McMurray, Morganton, for plaintiff appellant.
Patton & Ervin, Morganton, for defendant appellee.
The determinative question on this appeal is whether or not the complaint states a cause of action against William L. Clark, as administrator of the estate of Charles Clark, deceased.
The defendant here contends that the complaint fails to allege either that William L. Clark was the administrator of Charles Clark, deceased, or that he had qualified and was acting as administrator of said estate, and that, therefore, the court properly sustained his demurrer. It is true that, except for the captions, William L. Clark is not referred to specifically in the pleadings as administrator. However paragraph 3 in pertinent part alleges 'that William L. Clark's intestate, Charles Clark, died a resident of Burke County, North Carolina.' Plaintiff moved to amend paragraph 2 by adding: 'That William L. Clark was duly appointed Administrator of the Estate of Charles Clark, deceased, on the 26th day of July, 1958, by the Clerk of the Superior Court of Burke County, and that he is now the duly appointed, qualified and acting administrator of the estate of Charles Clark, deceased.' As stated above this motion was denied.
Nevertheless, the language of the complaint, properly interpreted, shows a suit against William L. Clark, Administrator. The allegation in paragraph 3 shows that William L. Clark purported to act in some capacity for the estate of Charles Clark. It certainly indicates it was intended that he be sued in a capacity other than individually. While a complaint should specifically allege whether the action is brought against the defendant in his representative capacity, it is sufficient if the complaint, taken as a whole, shows that the defendant is being sued in a representative capacity, though it is not expressly so alleged. In Giguere v. Rosselot, 110 Vt. 173, 3 A.2d 538, the Supreme Court of Vermont so holds.
Indeed, we think that the allegations of the complaint indicate with reasonable certainty that the defendant is being sued in a representative capacity, and that this is sufficient to fix the character of the action even though there is no express or specific averment thereof. See Reddy v. Johnston, 77 Idaho 402, 293 P.2d 945, citing 67 C.J.S. Parties § 100, p. 1096.
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