Privette v. Morgan
| Decision Date | 26 March 1947 |
| Docket Number | 94 |
| Citation | 41 S.E.2d 845,227 N.C. 264 |
| Parties | PRIVETTE et al. v. MORGAN et al. |
| Court | North Carolina Supreme Court |
The plaintiffs brought this action for relief against the feme defendant, individually, and as administratrix of the estate of her deceased husband, John H Privette, and guardian of the plaintiffs, alleging fraud in all three capacities in the conduct of the trust committed to her and in the acquisition and conversion, it is alleged, of funds and property now rightly belonging to the plaintiffs. The plaintiffs are children of Mrs. Morgan and at the times alleged in the complaint, were minors.
Mrs Privette re-married after the death of her husband, John H Privette, and her present husband, L. S. Morgan, is joined as party defendant because of that relationship. O. B. Moss was Commissioner under order of court in some of the transactions referred to; and Moses Allen and J. D. Driver were tenants upon a portion of the disputed properties, paying rent to Mrs. Morgan. Hereinafter Mrs. Lottie Privette Morgan will be referred to as the defendant.
Prior to the institution of this action the administratrix and guardian had filed her final account in each capacity showing a balance due her as administratrix of $841.05, and a balance due her four wards of $147.52, now in the hands of the clerk.
The complaint contains 30 allegations, 12 demands for relief, and occupies 20 pages of the record. Its full reproduction here is impracticable; a description of the nature of the case, the allegations and demands, will suffice.
The complaint purports to give a connecting story of the transactions of the defendant in her capacity as administratrix, and guardian of the plaintiffs. Its burden is the fraud of defendant in connection with the principal incidents of administration, presented as a continuing scheme to deprive the plaintiffs of real and personal property rightfully belonging to them as heirs and distributees of the estate. The denunciations of fraud extend to the procurement of the decrees and orders of the probate court and the sale of lands to make assets, the appointment of a commissioner and confirmation of the same; the allotment of the widow's dower; the allowance of her year's support; the order of rental of land belonging to the estate; and other legal steps taken while acting under the orders, authority and supervision of the probate court, or Clerk acting within his statutory jurisdiction.
In a prayer for relief the plaintiffs demand that all the orders and decrees of the Clerk made in these connections, as well as the allowance of the year's support shown to have been made under the proper legal procedure, be vacated on grounds of fraud; that a receiver be appointed for recoverable property, including the real estate claimed by plaintiffs; that the defendants Allen and Driver be required to pay the rents to such receiver; and that an account be taken covering defendant's entire dealing with the estate.
On the hearing of the application for the appointment of a receiver before Stevens, J., the defendant, in lieu of such appointment, was required to file a bond in the sum of $10,000 to protect the rights of the plaintiffs in the litigation. The bond was duly filed.
Before the time to answer had expired the defendant moved to strike out from the complaint certain matter as irrelevant, redundant, and prejudicial; also filed a motion asking the plaintiffs' pleading be stricken from the record and that they be required to replead, for that the objectionable matter was so interspersed and intermingled in the complaint and so affected its allegations, as to render it impossible to eliminate it otherwise.
The motion to strike is directed towards all the allegations of the complaint, from 4 to 30, inclusive. It is predicated upon the irrelevancy of these allegations to any of the demands for relief made by the plaintiffs or to any relief which the court might afford upon the facts presented; to the reiterated charges of fraud made in the complaint without sufficient particularization of the fraudulent acts or conduct constituting the fraud in their relation to the various orders, decrees and administerial acts attacked; and to general denunciations as fraudulent acts and conduct of the defendant, which upon the face of the complaint, were innocent and lawful. Detailed reference to each paragraph of the complaint and the allegations thereof is not considered necessary to the decision.
Upon the hearing the trial judge declined both motions over the objection of the defendant, who excepted and appealed.
L. L. Davenport, of Nashville, Hobard Brantley, of Spring Hope, for defendants-appellants.
Cooley & May, of Nashville, Sharpe & Pittman, of Wilson, and Battle, Winslow & Merrell, of Rocky Mount, for plaintiffs-appellees.
The appeal poses the question whether there was error in declining either or both of the motions made by the defendant: To strike from the complaint certain objectionable matter specifically pointed out; or to strike the complaint from the files and order the plaintiffs to replead. The first motion, if made in time, as it is here, involves a matter of right. Parrish v. Atlantic Coast Line R. Co., 221 N.C. 292, 20 S.E.2d 299; Hill v. Stansbury, 221 N.C. 339, 20 S.E.2d 308; Patterson v. Southern R. Co., 214 N.C. 38, 198 S.E. 364. The second, viewed as a motion to require an amendment or reformation of the complaint, to make it more certain, is within the discretion of the lower court. Womack v. Carter, 160 N.C. 286, 75 S.E. 1102; Tickle v. Hobgood, 212 N.C. 762, 194 S.E. 461. We examine the questions presented in that light.
The gravamen of plaintiffs' case is the alleged fraudulent conduct of the defendant in using the orders and decrees of the Clerk, acting within his statutory jurisdiction, and the offices of various commissioners duly appointed or acting with statutory authority, as devices in furtherance of a scheme to acquire and convert to her own use the personal and real property of the estate committed to her care, in violation of her duties as administratrix and guardian, and to the injury of her wards who now claim the property as heirs and distributees.
In the course of the pleading a direct...
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