Swann v. Martin

• Decision Date: 17 March 1926
• Docket Number: 160.
• Citation: 132 S.E. 16,191 N.C. 404
• Parties: SWANN v. MARTIN et al.
• Court: North Carolina Supreme Court

132 S.E. 16

191 N.C. 404

SWANN v. MARTIN et al.

No. 160.

Supreme Court of North Carolina

March 17, 1926

Appeal from Superior Court, Pamlico County; Bond, Judge.

Civil action by the State, on the relation of W. J. Swann administrator of Nathan Cahoon, deceased, against E. E Martin and the New Amsterdam Casualty Company. From a judgment for defendants, plaintiff appeals. Affirmed.

Issue of conspiracy is not for jury on evidence merely creating suspicion of conspiracy.

Summons was issued September 19, 1925. Summons was served on the defendant Martin September 26, 1925, and on the New Amsterdam Casualty Company September 22, 1925. There were two causes of action set out in the complaint. It was alleged as a first cause of action that the defendant Martin was clerk of the superior court of Pamlico county; that the first term of said clerk began on the 8th day of December, 1914, and he was re-elected for a second term and inducted into office for the second term on the first Monday in December, 1918, and that New Amsterdam Casualty Company was surety on his official bond.

It was further alleged that Paul D. Cahoon, administrator of the estate of Nathan Cahoon, deceased, entered into a wrongful and unlawful conspiracy and collusion with said clerk, in pursuance of which the said administrator loaned to said clerk, without security, the sum of $2,040 belonging to the estate of the decedent, Nathan Cahoon, with intent to cheat and defraud the estate of said deceased, and that the said clerk required said administrator to give an insufficient bond. It was further alleged that the defendant New Amsterdam Casualty Company was also bondsman for the administrator Paul D. Cahoon, said bond being in the penal sum of $1,000. The evidence offered at the trial tended to show that the administrator had loaned the clerk about $2,000, and that subsequently the administrator, Cahoon, had brought suit against said clerk and secured a judgment.

Upon the second cause of action alleged, it appears from the record that the full penalty of the bond of the administrator, Paul D. Cahoon, was paid by said casualty company, bondsman, to one B. F. Griffin, guardian, as a result of an action entitled State ex rel. B. F. Griffin Guardian, v. Paul D. Cahoon and New Amsterdam Casualty Company, to which said action all of the creditors of the estate of Nathan Cahoon, deceased, were parties. The facts relating to the various aspects of this litigation appear in Lee v. Martin, 118 S.E. 914, 186 N.C. 127; Id., 123 S.E. 631, 188 N.C. 119; Id., 126 S.E. 738, 189 N.C. 247; and Griffin v. Cahoon, 126 S.E. 927, 189 N.C. 254, and for that reason it is unnecessary to repeat them.

The issues submitted to the jury and the answers to said issues were as follows:

"(1) Did the defendant Martin and Paul D. Cahoon, administrator of the estate of Nathan Cahoon, enter into a conspiracy to cheat and defraud the estate of Nathan Cahoon, as alleged in the complaint? A. No.

"(2) Did the defendant Martin neglect to require the said administrator to give a good and sufficient bond, as alleged in the complaint? A. Yes.

"(3) Did the defendant Martin embezzle funds belonging to the estate of the said Nathan Cahoon, as alleged in the complaint? A. No.

"(4) What amount, if anything, is plaintiff entitled to recover on the penal sum of the bond of Paul D. Cahoon in his second cause of action? A. Nothing.

"(5) Did defendant New Amsterdam Casualty Company pay the $1,000 penalty of the administration bond signed by it with P. D. Cahoon, administrator of Nathan Cahoon, and set out in the second cause of action, on judgment rendered against it as set out in the answer? A. Yes.

"(6) If so, were C. S. Weskett & Co. and H. J. Kennedy, as C. H. Fowler & Co., the only unpaid creditors of the Nathan Cahoon estate and W. J. Swann, administrator de bonis non, parties to the litigation in which the matter was adjudicated, as alleged in the answer? A. Yes.

"(7) Are the plaintiff's causes of action set out as the first cause of action in the complaint barred by the statutes of limitation as against the defendant New Amsterdam Casualty Co.? A. Yes.

"(8) Are plaintiff's causes of action, as set out in the first cause of action, barred by the statutes of limitation as against E. E. Martin? A. Yes."

From judgment on the verdict, the plaintiff appealed.

Z. V. Rawls, of Bayboro, for appellant.

F. C. Brinson, of Bayboro, and Ward & Ward, of New Bern, for appellees.

BROGDEN J.

The first cause of action is based upon an alleged conspiracy between the defaulting clerk of Pamlico county and Paul D. Cahoon, administrator of the estate of Nathan Cahoon, deceased. An issue involving the question of conspiracy was submitted to the jury under instructions by the court to answer it in the negative. On this aspect of the case, therefore, the only question to be determined is whether or not there was any evidence of conspiracy.

It appeared that the administrator had collected about $2,000 belonging to the estate of the decedent, and that this sum had been loaned by the administrator to the clerk without security. It further appeared that the administrator had not made all the reports as required by statute. A conspiracy has been...