Brooks v. Holton.

48 S.E. 737, 136 N.C. 306, 1904 N.C. LEXIS 263

• Court: Supreme Court of North Carolina
• Decided: November 1, 1904
• Status: Published

Opinion

Connor, J.

This action was brought by E. S. Parker, Solicitor, for the, purpose of recovering an amount of money paid to the defendant, Clerk of the Superior Court of Guil-ford County, by O. R. Benbow, administrator of Mary Stanback, for the benefit of her distributees. The present plaintiff was made a party as tbe successor of Mr. Parker. The prayer for judgment was that the plaintiff recover the amount for the benefit of Ada A. Stanback and Belle Stan-back, the distributees. The defendant demurred for that the plaintiff had no authority nor was it his duty to sue for the money paid into the Clerk’s office. The Judge sustained the demurrer and upon motion of the said distribu-tees ordered that they be made parties plaintiff, and that the pleadings be reformed. * * * To this order the defendant excepted and appealed.

The order made by his Honor .is fully sustained by a number of cases decided by this Court. Cox v. Peebles, 67 N. C., 97; Comrs. v. Candler, 123 N. C., 682. The distributees were the real parties in interest and the amendment in nowise changes the cause of action, the amount which is recoverable, or affects any defense open to the defendants, as the action was originally brought. The case is distinguished from Goodman v. Goodman, 72 N. C., 508, where Bynum, J., says: “The suit was begun by the next of kin who had no right of action, and the attempt is to make that good by adding as a party a person who himself had no existence and no right of action when the suit was commenced.” In this case the distributees had a right of action when the suit was begun. The Solicitor expressly says that the money belongs to them and he is suing to recover for their benefit. In Merrill v. Merrill, 92 N. C., 657, it was necessary for the substituted plaintiff to set forth a new and different cause of action. This cannot be done. There is

No Error.