Evans v. Morrow

64 S.E.2d 842, 233 N.C. 562, 1951 N.C. LEXIS 342

• Court: Supreme Court of North Carolina
• Decided: May 2, 1951
• Status: Published

Opinion

Stacy, 0. J.

Tbe appellant says that as actions against administrators in their official capacity, or upon their official bonds, may be instituted only in tbe county of their qualification, G.S. 1-78, tbe court was without authority to order Creed C. Morrow as administrator of bis son’s estate be made a party in this suit pending in Mecklenburg County, tbe county of bis qualification as administrator being Eowan, citing as authority for tbe position tbe above statute and Stanley v. Mason, Admr., 69 N.C. 1.

Tbe point raised is controlled by what was said in Latham v. Latham, 178 N.C. 12, 100 S.E. 131. Tbe statute applies to original actions “instituted,” i.e., originally commenced against personal representatives, and not to actions already pending in which it may be proper or necessary to make them parties. In tbe cited ease, an executrix qualified in Craven County, was made a party defendant to an action pending in Beaufort County. Tbe executrix appeared and asked for a removal of tbe action to Craven County as a matter of right. Tbe motion was denied, and on appeal tbe ruling was affirmed, tbe Court pointing out tbat nothing is said in tbe statute about tbe place of trial, only tbat such original actions “must be instituted” in tbe county of qualification, whereas in G.S. 1-76, dealing with venue, tbe language is “must be tried,” etc., tbe difference in phraseology being regarded as significant.

Tbe question is not jurisdictional, but one of venue. Wiggins v. Finch, 232 N.C. 391, 61 S.E. 2d 72, and cases there cited.

Affirmed.