State ex rel. Griffin v. Cahoon, 189 N.C. 254 (1925)

March 11, 1925 · Supreme Court of North Carolina

189 N.C. 254

STATE ex rel. B. F. GRIFFIN, Guardian, et al., v. PAUL D. CAHOON, Administrator, et al.

(Filed 11 March, 1925.)

Judgments — Estoppel—Clerks oí Court — Interveners—Appeal and Error —Actions.

The guardian of the minor children of the deceased sued the administrator and surety on his bond for the distributive share of his wards, in which creditors of the deceased intervened and made themselves parties, claiming the amount should be distributed among them. The clerk rendered judgment, declaring that the surety company had properly settled with the guardian, and relieving them of further liability, to which the interveners did not except, and from which no appeal was taken: Held, the interveners could not thereafter maintain an independent action against the surety on the administrator’s bond for the same cause of action.

Appeal by interpleaders from judgment rendered by Midyette, J., at Fall Term, 1924, of Pamlico.

Tbis action was begun on 21 December, 1921, by B. E. Griffin, guardian of tbe infant children of Natban Gaboon, deceased, against Paul D. Gaboon, administrator of Natban Gaboon, and tbe New Amsterdam Casualty Company, surety on bis bond as administrator. Complaint was filed on 3 January, 1923. Plaintiff demanded judgment tbat be recover of defendant administrator tbe sum of $6,040, alleged to be due bis wards as distributees of tbe estate of Natban Gaboon by said administrator, and tbat be recover of tbe surety for said administrator tbe sum of $1,000, tbe penal sum of tbe bond. Neither defendant filed answer.

On 7 March, 1923, a judgment was signed by tbe clerk of tbe Superior Court of Pamlico County, reciting tbat tbe New Amsterdam Casualty Company, surety on tbe bond of Paul D. Gaboon, administrator of Natban Gaboon, bad paid to B. F. Griffin, guardian, tbe sum of $1,000, tbe penal sum of said bond, and thereupon adjudging tbat tbe said surety was discharged from all further liability on the bond of tbe said administrator.

On tbe same day, to wit, H March, 1923, C. S. Weskett & Co. and C. H. Fowler & Co., upon motions duly filed in this cause, were permitted, over tbe objections of plaintiff, to interplead, to tbe end tbat they might share in any recovery bad in this action against defendants. Neither of tbe interpleaders excepted to tbe judgment rendered on tbe same day. Thereafter, both interpleaders filed complaints, each alleging tbat be was a judgment creditor of tbe administrator of Natban Gaboon, and demanding judgment tbat tbe fund recovered in this action be distributed among tbe parties according to their respective interests.

To tbe judgment declaring tbat tbe interpleaders bad no interest in or to tbe fund recovered by and paid to tbe guardian in this action, interpleaders excepted and appeal therefrom to this Court.

D. L. Ward and T. G. Brinson for appellee.

Z. V. Bawls for appellants.

Connor, J.

Plis Honor held tbat interpleaders, having failed to except to tbe judgment approving tbe payment by tbe surety of tbe sum of $1,000 to plaintiff, were precluded from thereafter asserting any rights to tbe funds recovered by and paid to tbe plaintiff as guardian of the infant distributees of tbe estate of Natban Caboon. This bolding, and tbe judgment in accordance therewith, interpleaders assign as error. Tbe assignment of error cannot be sustained. Tbe fund was not in tbe custody of tbe court at time complaint was filed, but bad been paid to tbe guardian, who held it under a final judgment in an action to which interpleaders bad, upon their motion, been made parties. There are other assets available to tbe administrators and interpleaders, as creditors of tbe estate, must look to these assets for tbe payment of their judgments. Tbe judgment is

Affirmed.