State ex rel. Wilson v. Houston, 76 N.C. 375 (1877)

Jan. 1877 · Supreme Court of North Carolina

76 N.C. 375

STATE ex rel. J. N. D. WILSON, Guardian, v. H. M. HOUSTON, Admr. and others.

Parties — Aetion by Guardian.

Where an action is brought by a guardian upon the bond of a former guardian, to which bond the plaintiff guardian, is surety, it is necessary ' that the wards of the plaintiff shall be made parties plaintiff and a pro-ehein ami appointed to protect their interests.

Civil ActioN, tried at Fall Term, 1876, of Cabarrus Superior Court, before Schenck, J.

The action was brought on a G-uardian Bond executed by the intestate of defendant, to which the plaintiff guardian was one of the sureties.

Before this action was commenced the plaintiff guardian ■demanded of the defendant’s intestate a settlement of the estate of his wards, and asked that an account be taken, &c.

The defendants demurred to the complaint and assigned as cause:

1. That plaintiff has not legal capacity to sue in this, that he is the plaintiff in this action and one of the sureties of the bond sued on.

2. That there is a defect of parties, in this, that the wards; should be made parties plaintiff.

3. That the complaint does not state facts sufficient to> constitute a cause of action, that a copy of the bond referred to is not appended thereto, and that no breach of sai& bond is assigned.

TIis Honor overruled the demurrer and the defendants. • appealed.

Mr. W. J. Montgomery, for plaintiff.

Messrs. Wilson £ Son, for defendants.

Reade, J.

The plaintiff guardian is one of the obligors in the bond sued on, it being the bond of a former guardian of the plaintiff’s wards. So that while the plaintiff is interested to effect a recovery for his wards, he is interested to-defeat a recovery against himself or which may enuro against himself.

This action could not be 'sustained' at law; and even in equity where it might be sustained, it would be necessary to have the interests of the wards protected by a disinterested personother than the plaintiff guardian.

So much of the demurrer as raises this point is sustained. And the case is remanded, to'the end that the wards may be made parties plaintiff and a proehein ami be appointed to protect their'interests.

There is error. Case will be remanded. Costs in this Court will be paid by plaintiff.

Per Curiam. Judgment accordingly.