Mcneill v. Currie

• Citation: 117 N.C. 341,23 S.E. 216
• Court: North Carolina Supreme Court
• Decision Date: 26 November 1895
• Parties: McNEILL et al. v. CURRIE et al.

23 S.E. 216

117 N.C. 341

McNEILL et al.

v.CURRIE et al.

Supreme Court of North Carolina.

Nov. 26, 1895.

Abatement—Action Pendino.

Pending an action in one county to determine the liability of a deceased surety on a guardian's bond, an action will not lie in another for the same purpose, and to subject the decedent's estate to the payment of the debt

Appeal from superior court, Robeson county; Brown, Judge.

Action by Thomas A. McNeill and others against J. D. Currie and others to subject the estate of defendants' decedent to the payment of the decedent's liability as surety on a guardian's bond. From a judgment for defendants, plaintiffs appeal. Affirmed.

Frank McNeill, for appellants.

N. W. Ray, N. A. McLean, and W. E. Murchison, for appellees.

CLARK, J. When this case was here before (McNeill v. McBryde, 112 N. C. 408, 10 S. E. 841) the court said: "The objection that the plaintiff Caroline McNeill cannot subject the land of the intestate until a judgment has been obtained upon the guardian bond executed by him would seem to be sustained by the case of Williams v. McNair, 98 N. C. 332, 4 S. E. 131, 133." The defendant, however, was then held barred from a judgment dismissing the action because the demurrer admitted the liability; but now, an answer having been filed, it has been found as a fact that no judgment has been obtained against the surety, ascertaining the amount of the indebtedness, nor that there is any. While a judgment has heretofore been obtained against the guardian individually in the probate court of Cumberland county, no judgment has yet been had upon the guardian bond, a proceeding for that purpose being now pending in the superior court of Cumberland. The judgment against the guardian was heldconclusive against the surety on the bond in State v. Pike, 74 N. C. 531, but since then this has been changed by the act of 1881, now Code, § 1345. Moore v. Alexander, 96 N. C. 34, 1 S. E. 536. The judgment against the guardian is now only presumptive evidence, which the surety is allowed to rebut if he can, and which his administrator is now seeking to do in the action pending in Cumberland county. The plaintiff contends, however, that though judgment should be obtained to ascertain the liability of the surety on the guardian bond before subjecting the real estate of the deceased surety, or the proceeds thereof, in the hands of his heirs at law, both remedies can be had in this action (Code, § 267), and that if the venue should have been in ...