Roberts v. . Connor

Eubciies, J. This appeal is from an order of the Superior Court of Franklin County removing the cause to Wilson County for trial, and the merits of the controversy are not involved. The plaintiff Roberts resides in Franklin County, and the defendant, Connor, resides in Wilson County, and the bank spoken of and doing business as “Branch & Co., Bankers,” is located in Wilson County; and the matters complained of are that the bank wrongfully appropriated money of plaintiff’s to the payment of unauthorized checks. The action was commenced on the 8th day of October, 1898, returnable to October Term, 1898, and on Monday of that term of the court the plaintiffs filed their verified complaint. At this term, time was given defendant until January Term *47 to answer, and at January Term 60 days further time was allowed the defendant to answer. Before the 60 days had expired, the defendant served notice of his intended motion to move the court at the next term for an order transfering the action from Eranklin County to Wilson County for trial. At April Term, 1899, this motion was made upon the ground that the defendant Connor is sued as the executor of “A. Branch.” The motion was allowed and the order of removal made, and the plaintiffs appealed. The defendant here contended that the appeal was premature and moved to dismiss upon that ground. But we do not agree wtih defendant, and refuse the motion to dismiss the appeal. Alliance v. Murrill, 119 N. C., 124. The defendant, Connor, contends that he is sued as executor of A. Branch, and for this reason the motion to remove should be allowed under sec. 193 of The Code. We do not think so. While the defendant,Connor,is designated as the surviving executor of “A. Branch,” it is perfectly manifest that it is the alleged wrongful acts of “the bank” that are complained of. There are no allegations in the complaint charging or suggesting that the action is founded on a debt or liability of “A. Branch,” nor is it suggested that the defendant has violated any of the trusts imposed on him by the terms of the will of “A. Branch.” If these things had been alleged in the complaint, it would have been a proper case for removal. It is the acts of the bank — Connor the bank, that are complained of, for transactions of the bank — Connor the bank-— which have occurred long since the death of “A. Branch” and for which the bank through Connor its manager is liable, if the plaintiffs shall succeed in making a recovery. Froelich v. Trading Co., 120 N. C., 40. The motion of Connor as “executor of A. Branch” is simply to designate the authority under which Connor is *48 operating the bank. It is no more than it would have been if the bank had been chartered by an act of the Legislature, and Connor had been President, and the plaintiffs had stated in their complaint that'“Branch & Co., Bankers” is an institution, or a bank, chartered by the Legislature of North Carolina, doing business at Wilson, N. C. This would not have involved the terms or provisions of the charter in a transaction like this, but simply the fact whether the bank had misapplied the funds of plaintiffs as they allege. Eor these reasons it does not seem to us that it is a proper case for the application of sec. 193 of The Code, and the motion to remove should not have been allowed. The Court- being of this opinion, any discussion of the other point presented by the appeal, as to whether the application to remove was made in apt time, would be but obiter, and we prefer not to enter this field of discussion for the reason that “sufficient unto the day is the evil thereof.” There was error in making the order of removal, which is Reversed.