McNeill v. . Currie

Clark, J.: When this case was here before (McNeill v. McBride, 112 N. C,, 408), the Court said : “ The objection that the plaintiff Caroline McNeill cannot subject the land of the intestate until a judgment has been obtained upon the guardian bond executed by him, would seem to be sustained by the case of Williams v. McNair, 98 N. C., 332.” The defendant, however, was then held barred from a judgment dismissing the action because the demurrer admitted the liability, but now an answer-having been filed, it has been found as a fact that no *346 judgment lias been obtained against tlie surety ascertaining tbe amount of the indebtedness, nor that there is any. "While a judgment has heretofore been obtained against the guardian individually in the .Probate Court of Cumberland County, no judgment has yet been had upon the guardian bond, a proceeding for that purpose being now pending in the Superior Court of Cumberland. The judgment against the guardian was held conclusive against the surety on the bond, in Brown v. Pike, 74 N. C., 531, but since then this, has been changed by the Act of 1881, now The Code, Sec. 1345. Moore v. Alexander, 96 N. C., 34. The judgment against the guardian is now only presumptive evidence which the surety is allowed to rebut if he can, and which his administrator is now seeking to do in the action pending in Cumberland county. The plaintiff contends, however, that though judgment should be obtained to ascertain the liability of the surety on the guardian bond before subjecting the real estate of the deceased surety or the proceeds thereof in the hands of his heirs-at-law, both remedies can be had in this action (Oode, Sec. 267) and that if the venue should have been in Cumberland county where the guardian resided and the bond was filed (Code, Sec. 193, Cloman v. Staton, 78 N. C., 235) objection on that ground was waived by failure to move for removal of the cause to that county before filing answer. Code, Sec. 195 ; Clark’s Code (2nd Ed.) p. 112. If both these positions be conceded still the defendant in his answer (par. 6) has pleaded that an action was already pending in Cumberland county, when this action was brought and is still pending there, in favor of the plaintiff and against the' guardian bond to ascertain the amount of the liability of the surety thereon, if any, and the court below finds the fact as thus alleged in the answer. *347 Tbe court below therefore properly held that this action, subsequently begun for tbe same purpose, could not be maintained (Claywell v. Sudderth, 77 N. C., 287, Woody v. Jordan, 69 N. C., 189) and if it cannot be maintained to ascertain tbe extent of tbe liability of tbe surety, it cannot be upheld for the purpose of subjecting tbe realty or proceeds thereof, since that must be based on an adjudication of tbe debt. Williams v. McNair, supra. No Error.