Wiggins v. Finch, 91

• Decision Date: 27 September 1950
• Docket Number: No. 91,91
• Citation: 61 S.E.2d 72,232 N.C. 391
• Parties: WIGGINS, v. FINCH et al.
• Court: North Carolina Supreme Court

Page 72

61 S.E.2d 72

232 N.C. 391

WIGGINS, v. FINCH et al.

No. 91

Supreme Court of North Carolina.

Sept. 27, 1950

Lucas & Rand and Z. Hardy Rose, Wilson, for John L. Wiggins, Jr., administrator.

Connor, Gardner & Connor, Wilson, for Horace Finch.

Paul B. Edmundson, Dees & Dees, Fred P. Parker, Jr., and James N. Smith, all of Goldsboro, for Branch Banking & Trust Co.

DENNY, Justice.

The appellant is not entitled to an abatement of this action, even though it be conceded it was instituted in the wrong county. It has been repeatedly held that our statutes relating to venue are not jurisdictional, and that if an action is instituted in the wrong county it should be removed to the proper county, and not dismissed, if the motion for removal is made in apt time, otherwise the question of venue will be waived. G.S. § 1-83; Davis v. Davis, 179 N.C. 185, 102 S.E. 270; Roberts & Hoge, Inc., v. Moore, 185 N.C. 254, 116 S.E. 728; Bohannon v. Wachovia Bank & Trust Co., 210 N.C. 679, 188 S.E. 390; Shaffer v. Bank, 201 N.C. 415, 160 S.E. 481; Calcagno v. Overby, 217 N.C. 323, 7 S.E.2d 557; Wynne v. Conrad, 220 N.C. 355, 17 S.E.2d 514.

The motion for change of venue presents a more serious question. The appellant is relying on the provisions of G.S. § 1-78, in which it is provided that: 'All actions against executors and administrators in their official capacity, except where otherwise provided by statute, and all actions upon official bonds must be instituted in the county where the bonds were given, if the principal or any surety on the bond is in the county; if not, then in the plaintiff's county.'

The statute lacks completeness in its terms. Nevertheless, we are of the opinion that it was the intent of the legislature to require all actions against executors and administrators in their official or representative capacity to be instituted in the county where the letters of administration were taken out, except where otherwise provided by statute. And that all actions against executors and administrators upon their official bonds must be instituted in the county where the bonds were given, if the maker or any surety thereon lives in the county, if not, then in the plaintiff's county.

In the case of Stanley v. Mason, Adm'r, 69 N.C. 1, Justice Reade, in speaking for the Court, said: 'The object of the statute was to have suits against these persons, whether upon their bonds or not, in the county where they took out letters, and where they make their returns and settlements, and transact all the business of the estates in their hands.'

The statute has been similarly construed in Foy, Adm'r, v. Moorehead et al., Adm'r, 69 N.C. 512; Bidwell v. King, 71 N.C. 287; Wood v. Morgan, 118 N.C. 749, 24 S.E. 522; Farmers' State Alliance v. Murrell, 119 N.C. 124, 25 S.E. 785; Thomas v. Ellington, 162 N.C. 131, 78 S.E. 12; Clark Lumber Co. v. Currie, 180 N.C. 391, 104 S.E. 654; Montford v. Simmons, 193 N.C. 323, 136 S.E. 875; Thomasson v. Patterson, 213 N.C. 138, 195 S.E. 389; Godfrey v. Tidewater Power Co., 224 N.C. 657, 32 S.E.2d 27. Cf.Latham v. Latham, 178 N.C. 12, 100 S.E. 131.

The appellees are relying upon Clark v. Peebles, 100 N.C. 348, 6 S.E. 798; Smith v. Patterson, 159 N.C. 138, 74 S.E. 923, and the statement contained in the opinion in Clark Lumber Co. v. Currie, supra, as follows: 'It is well settled in this state that an administrator or executor must be sued in the county in which he took out letters of administration or letters testamentary, provided he or any one of his sureties lives in that county, whether he is sued on his bond or simply as administrator or executor.' This statement is also quoted in Montford v. Simmons, supra. However, we do not think those opinions support the view that unless a bond is filed and the principal or one of his sureties lives in the county, a plaintiff can ignore the provisions of the statute and bring the suit in his own county against an executor or administrator in his official capacity. For, in the opinion in Clark Lumber Co. v. Currie, 180 N.C. 391, 104 S.E. 654, supra, there is nothing to indicate that the executor was required to file a bond before qualifying. Even so, the Court said 'the action must be brought in the county where the executrix took out letters testamentary.' If the action is on the official bond of an executor or administrator and neither the principal nor any of his sureties lives in the county where the letters of administration were taken out, the plaintiff may sue in his own county. McIntosh N. C. Practice & Procedure, p. 270. This was expressly held in Clark v. Peebles, supra, and in Thomasson v. Patterson, 213 N.C. 138, 195 S.E. 389, 390, supra. In the latter case, Barnhill, J., speaking for the Court, said: 'We therefore hold that the provision of C.S. § 465 (now G.S. § 1-78), that an action upon an official bond shall be instituted in the county where the bond is filed if the principal or any one of the sureties on said bond resides in said county, is controlling. Actions against executors and administrators in their official capacity, when not upon an official bond filed in some other county, must be instituted in the county where the executor or administrator qualified.'

To hold that the statute is not applicable when an executor or administrator is sued in his official capacity, unless a bond is filed and the principal or one of his sureties lives in the county, is contrary to sound reasoning. Executors are not required to file a bond before obtaining letters testamentary except in certain instances fixed by statute. And a banking institution that is authorized to qualify as an executor or administrator is not required to file any bond before obtaining letters of administration as an executor or administrator. G.S. § 53-159 Furthermore, the mere fact that G.S. § 1-79 fixes the residence of a domestic corporation for the purpose of suing and being sued at its principal...