Wingler v. Miller
| Decision Date | 25 March 1942 |
| Docket Number | 241. |
| Parties | WINGLER et al. v. MILLER et al. |
| Court | North Carolina Supreme Court |
Ira T. Johnston, of Jefferson, and J. Allie Hayes, of North Wilkesboro, for appellants.
A H. Casey and John R. Jones, both of North Wilkesboro, and Trivette & Holshouser, of Boone, for appellee A. R Miller.
Plaintiffs assign error in the court's ruling upon their demurrer to the defendants' cross-bill. They contend that, instead of permitting it to remain on the docket, the cross-action should have been dismissed. To determine the correctness of the challenged ruling requires consideration of the pleadings in the cause. The material matters therein set out may be briefly stated as follows:
The plaintiffs, the heirs at law of N. Wingler, deceased, and the sole distributees of his estate, instituted their action against A. R. Miller and M. C. Wingler, the administrators of the estate, and the sureties on their administration bond. The gravamen of their complaint is the alleged misapplication of certain funds of the estate by defendant Miller under the pretense that the funds belonged to a partnership formerly existing between N. Wingler and defendant Miller. The plaintiffs alleged that there was in the possession of N Wingler at the time of his death the sum of $6,395.57, of which one-half was, by consent of his co-administrator, paid to and received by defendant Miller as surviving partner. It was alleged that this money belonged to the estate and was not partnership funds. It was also alleged that all the debts of the estate had been paid, and that the plaintiffs as sole distributees were entitled to the entire amount of this fund. Plaintiffs further alleged that defendant Miller had fraudulently induced his co-administrator M. C. Wingler to join in the wrongful diversion of this fund, and that on account of this breach of trust defendant Miller should not be allowed commissions and should be removed as administrator. Recovery was asked against the defendants Pearson, the sureties on the administration bond.
The defendant Miller, as administrator and individually, and the defendants Pearson as sureties on the administration bond filed joint answer in which the allegations of wrongful conduct were denied, and it was alleged that the funds referred to were partnership funds, and that defendant Miller as surviving partner was entitled to one-half thereof. No objection was raised as to the propriety of plaintiffs' action. Further answering the defendant Miller, alone, "by way of new matter, cross-bill, and further defense," alleged that, pursuant to an agreement after the death of N. Wingler, defendant M. C. Wingler had been put in charge of the partnership mercantile business formerly conducted by N. Wingler and defendant Miller, but that defendant M. C. Wingler had neglected the business and engaged in drinking and gambling, and had refused to account. Thereupon as to M. C. Wingler defendant Miller prayed that he be enjoined from further operating the business, that a receiver be appointed to take charge of the goods and merchandise, and that M. C. Wingler be removed as administrator.
The defendant Miller further alleged in his cross-bill that the plaintiffs and the defendant M. C. Wingler had conspired together to slander and defame him by maliciously circulating the report that he had wrongfully and unlawfully taken the sum of four thousand dollars from the estate of N. Wingler, and that by reason of such defamation he had been damaged in the sum of twenty-five thousand dollars.
Separate prayers for relief were set out in the answer. The defendants Pearson prayed that plaintiffs take nothing by their action. The defendant Miller prayed, in addition, that M. C. Wingler be enjoined, that a receiver be appointed, that M. C. Wingler be removed as administrator, and that he recover of the plaintiffs and M. C. Wingler damages for slander.
The plaintiffs demurred to the...
To continue reading
Request your trial