Morgan v. Morgan, 215 N.C. 725 (1939)

May 31, 1939 · Supreme Court of North Carolina

215 N.C. 725

E. A. MORGAN v. MARY JANE MORGAN et al.

(Filed 31 May, 1939.)

Guardian and Ward § 25: Pleadings § 16—

When the amounts due a ward are admitted or not controverted, the ward may maintain suit to follow the guardianship funds and to hold the bondsmen liable for any deficiency without making the personal representative of the insolvent deceased guardian a party, and defendants’ demurrers for misjoinder of parties and causes for want of a necessary party are properly overruled.

Appeal by defendants from Bivens, J., at December Term, 1938, of Moore.

Civil action to recover guardianship funds and to hold sureties liable for any deficiency.

Separate demurrers for alleged misjoinder of parties and causes of action were filed by tbe defendants.

From judgment overruling tbe demurrers, tbe defendants appeal, assigning errors.

Mosley G. Boyette for plaintiff, appellee.

W. B. Glegg for defendant Morgan, appellant.

J. II. Scott for defendant J. B. Brewer, appellant.

PeR Cueiam.

Absence of a necessary party may be taken advantage of by demurrer, Geitner v. Jones, 173 N. C., 591, 92 S. E., 493, but where amounts due are admitted or not controverted, tbe ward as against a demurrer for misjoinder of parties and causes may follow guardianship funds, McNeill v. McBryde, 112 N. C., 408, 16 S. E., 841, and bold bondsman liable for any deficiency, without making representative of insolvent deceased guardian party. Humphrey v. Surety Co., 213 N. C., 651, 197 S. E., 137.

In case tbe amounts alleged to be due are controverted, see Moses v. Moses, 204 N. C., 657, 169 S. E., 273, and McNeill v. Currie, 117 N. C., 341, 23 S. E., 216.

Tbe rulings upon tbe demurrers will be upheld.

Affirmed.