Lawson Ex Rel. Stallings v. Langley

ClaRKSON, J. (1) The injury for which the action is instituted took place in Johnston County, N. C. (2) The defendants, who in the complaint it is alleged negligently inflicted the injury, -are domiciled in Johnston County. (3) E. L. Stallings was appointed guardian for Frank Lawson in Johnston County. (4) Frank Lawson was domiciled in Johnston County. (5) E. L. Stallings resides in Wake County, N. C. Appellant concedes that the plaintiff Frank Lawson, being a resident of and domiciled in Johnston County prior to becoming a person non compos mentis, was incapable of changing his residence to Wake County. 19 C. J., pp. 417-418; Duke v. Johnston, ante, 171 (175). Under the above factual situation, does the plaintiff, guardian of an incompetent, have the right to maintain and try the action in the county of his personal residence? We think so. C. S., 469, is as follows: “In all other cases the action must be tried in the county in which the plaintiffs or the defendants, or any of them, reside at its commencement; or if none of the defendants reside in the State, then in the county in which the plaintiffs, or any of them, reside; and if none of the parties reside in the State, then the action may be tried in any county which the plaintiff designates in his summons and complaint, subject to the power of the court to change the place of trial, in the cases provided by statute.” C. S., 470, in part: “If the county designated for that purpose in the summons and complaint is not the proper one, the action may, however, be tried therein, unless the defendant, before the time of answering expires, demands in writing that the trial be conducted in the proper county, and the place of trial is thereupon changed by consent of parties, or by order of the court. The court may change the place of trial in *529 tbe following cases: (1) When the county designated for that purpose is not the proper one,” etc. Under this statute defendants seek to remove the action to Johnston County, N. C. C. S., 446, in part: “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided,” etc. 0. S., 449: “An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this section, includes a person with whom, or in whose name, a contract is made for the benefit of another.” 0. S., 450, in part: “In actions and special proceedings, when any of the parties plaintiff are infants, idiots, lunatics, or persons non compos mentis, whether residents or nonresidents of this State, they must appear by their general or testamentary guardian, if they have any within the State; but if the action or proceeding is against, or if there is no such guardian, then said persons may appear by their next friend.” C. S., 2169: “Every guardian shall take possession, for the use of the ward, of all his estate, and may bring all necessary actions therefor.” The defendants cite, as authority for their contention: George v. High, 85 N. C., 113 (114), where it is said: “It has been decided by this Court in several cases, and amongst them the cases of Branch v. Goddin, 60 N. C., 493; Falls v. Gamble, 66 N. C., 455; and Mason v. McCormick, 75 N. C., 263, that one who conducts a suit as guardian, or next friend, for infants is not a party of record, but that the infants themselves are the real plaintiffs.” Abbott v. Hancock, 123 N. C., 99. They also cite Krachanake v. Mfg. Co., 175 N. C., 435 (441), where it is. written: “The father is not, however, a party in the legal sense. He is an officer appointed by the court to protect the interest of his son, who is the real plaintiff (Hockoday v. Lawrence, 156 N. C., 319).” The plaintiff, on the other hand, contends that the above cases cited by defendants are distinguishable from the present case, and in his brief analyzes the distinction and cites N. 0. Practice & Procedure in Civil Cases (McIntosh), pp. 271-2, secs. 287 and 288, where it is said: “In all other actions except those indicated as local actions, the venue is regulated by statute according to the residence of the parties, and 'parties’ means those who appear as such upon the record. The plaintiff is allowed to select the forum, subject to certain restrictions imposed by the statute. Where the plaintiff and the defendant' both reside in the same county, the action must be tried there, unless removed for cause; and if there are several plaintiffs or several defendants, the action may be brought in any county in which any of the plaintiffs or any of the defendants reside. The residence at the commencement of the action *530 determines the venue, and a subsequent change of residence would not affect it. (Sec. 288.) In actions brought by fiduciaries, the personal residence of the fiduciary controls. While an executor or administrator must be sued in the county in which he qualified, he may bring an action in the county in which he resides, or in which the defendant resides, although neither may be the county in which he qualified. Plaintiff’s intestate was a resident of H. County and was killed in P. County; plaintiff, a resident of M. County, qualified as administrator in H. County, and brought an action for wrongful death in M. County against a foreign corporation and another defendant resident in P. County. The court held that the action was properly brought, since the residence of the individual holding the office and not his official residence or county where he qualified controlled. An action upon an insurance policy was properly brought by an administrator in the county of his individual residence, though not the county in which he qualified. The same rule applies in case of trustees, receivers, and other fiduciaries. Where an action is brought against an administrator for services rendered for him, this being a personal claim, and not a debt of the estate, the plaintiff may sue in his own county or in that of the administrator.” McIntosh cites authorities to sustain the text. Biggs v. Bowen, 170 N. C., 34; Hannon v. Power Co., 173 N. C., 520; Whitford v. Ins. Co., 156 N. C., 42; Mecom v. Fitzsimmons, 284 U. S., 183. The court below in the judgment found that Frank Lawson “is the real party in interest.” Fiduciaries are not the real parties in interest, yet they can bring an action for the real beneficiaries. It is expressly provided in C. S., 449. Sheppard v. Jackson, 198 N. C., 627 (628). McIntosh, supra, says the personal residence of the fiduciary controls in actions brought by fiduciaries. We think C. S., 2169, tends to support the view, where it is said: “Every guardian shall take possession, for the use of the ward, of all his estate, and may bring all necessary actions therefor.” The guardian can select the forum, as there is no statute to the contrary. All compensation for injuries received in course of employment, accruing and maturing during deceased’s lifetime, thereafter belongs to his “estate.” Morgannelli’s Estate v. City of Derby, 135 A., 911, 105 Conn., 545. The statute specifically charges the guardian that he “may bring all necessary actions therefor.” The plaintiff, under the statute, has done this, and we think he can do this in the county of his personal residence. In Wallace v. Wallace, 210 N. C., 656, the factual situation is different. For the reasons given, the judgment of the court below is Reversed.