Kerr v. . Mosley

Hoke, J. There is no reversible error in the record. On the trial it was made to appear that one D. M. Patrick, guardian of three Barksdale children, had recovered judgment on one of the guardian bonds against plaintiff, as executor and sole legatee of Mary Johnston, deceased, who had been one of the sureties, in the sum of $985.66; that plaintiff had paid off the judgment and taken an assignment of same to herself as an individual, such assignment being duly, entered and in writing. Thereafter, Mary Lou Kerr instituted a suit for contribution' against W. A. Johnston, administrator of W. N. Peden, deceased, another surety, and received a judgment for one-half of the amount of the first-mentioned judgment. W. A. Johnson having wasted the assets of his intestate, W. N. Peden, in an *224 action instituted by tbe distributees of said intestate recovery was bad on tbe administration bond of Jobnston in tbe sum of $30,000, Jobnston, administrator, having been first removed and W. W. Miller, one of defendants, duly appointed administrator de boms non of W. N. Peden. Plaintiff instituted tbis action on tbe judgment recovered in ber favor against- tbe administrator de bonis non and tbe distributees of W. N. Peden, to obtain payment of same out of tbe recovery bad on tbe bond of W. A. Jobnston,' and on averments tbat tbis judgment represented tbe entire assets of tbe estate, and tbe only available source from wbicb satisfaction of ber judgment could be secured. Defendants answered, and tbe only material issue raised by tbeir pleadings was on allegations of fraud in tbe procurement of plaintiff’s judgment, and tbis chiefly on tbe ground tbat tbe counsel appearing for Mary Lou Kerr, tbe plaintiff, was also counsel for W. A. Jobnston, as administrator of Peden and defendant. Tbe decisions of tbis State fully uphold tbe position of defendants, tbat a judgment in an adversary proceeding will not be allowed to stand when it appears tbat tbe same attorney represented both plaintiff and defendant in tbe action. Molyneux v. Huey, 81 N. C., 106; Gooch v. Peebles, 105 N. C., 411. But tbe principle does not necessarily obtain when it appears, as in tbis case, tbat tbe father of plaintiff bad been tbe general attorney of Jobnston, tbe administrator, and when it developed in tbe ordinary course of events tbat bis daughter bad a claim against the estate and tbat be notified tbe administrator tbat be intended to appear for ber, and tbat be, tbe. administrator, must get another attorney, and tbat tbis was done. . Tbe father, John D. Kerr, speaking to tbis question, as a witness, testified, among other things, as follows: “Before W. A. Jobnston became administrator of Peden, be talked with me about it, and I advised him not to do it. When be. administered I represented him here and Bellamy in "Wilmington. I represented him until tbe Barksdale matter came up. I notified him I would not appear against my daughter. I notified him to get him another attorney in tbe suit with my daughter. There was no collusion; my daughter bad none, lie bad full knowledge that I was going to sue for my daughter, and notified him to get other counsel. I notified him tbat 1 would represent ber in tbe Barksdale matter and would not represent him. Mr. Butler represented them.” And, further: “Tbe matter was fully gone into by Judge Jones.” On tbis evidence, we think tbe ruling of tbe trial court was *225 as favorable as the defendants bad right to ask, in ©barging the jury “that if John D. Kerr bad been the attorney of W. A. Johnston, administrator of W. N. Peden, and took judgment in favor of Mary Lou Kerr against the estate, this was evidence of fraud and collusion to be considered by them in determining the issue submitted to them.” The jury under a correct charge have accepted the plaintiff’s version of the occurrence, and, this being true, the plaintiff has a clear right to recover on her judgment. No error.