State v. . McCanless

*204 Clarkson, J. The defendants demur: (1) That the court has no jurisdiction of the person of the defendants or of the subject of the action; (2) the complaint does not state facts sufficient to constitute a cause of action. Defendants contend as to the first ground of demurrer: That plaintiff in its complaint is seeking to attack collaterally a final settlement filed by the administrators of N. B. McCanless, deceased, before the clerk of the Superior Court of Rowan County, and that the clerk alone has exclusive original jurisdiction to correct, modify, surcharge or set aside a final settlement of the administrators. In Horney v. Mills, 189 N. C., at p. 728, it is said: “If the facts alleged in the complaint, admitted to be true, upon consideration of the demurrer, and construed liberally, with every reasonable intendment and presumption in favor of plaintiff, constitute a cause of action, in favor of plaintiff and against defendant, the demurrer must be overruled; otherwise the demurrer must be sustained.” Smith v. Smith, 190 N. C., p. 764. In Houston v. Dalton, 70 N. C., at p. 664, Bynum, J., held: “The allegations of the complaint present a case of equitable jurisdiction only, according to our old judicial system, and when such is the case, the action is properly instituted in the Superior Court. So a bill to surcharge and falsify an account, which is the nature of the action now before us, was always brought in the court of equity. Adams’ Eq., 222; Murphy v. Harrison, 65 N. C., 246.” Public Laws, 1876-7, ch. 241, sec. 6, is now C. S., 135, which is as follows: “In addition to the remedy by special proceeding, actions against executors, administrators, collectors and guardians may be brought originally to the Superior Court at term time; and in all such cases it is competent for the court in which said actions are pending to order an account to be taken by such person or persons as said court may designate, and to adjudge the application or distribution of the fund ascertained, or to grant other relief, as the nature of the case may require.” Connor, J., in Fisher v. Trust Co., 138 N. C., p. 98, said: “The jurisdiction of courts of equity to entertain administration suits, at the instance of creditors, devisees or legatees has been uniformly recognized and frequently exercised. Such suits are less frequent since the distinction between legal and equitable assets-has been abolished and full powers in the settlement of estates conferred upon courts of probate. Whatever doubt may have existed in respect to the jurisdiction after the establishment of our present judicial system, was removed by the act of 1876, ch. 241, Code, sec. 1511 (C. S., 135); Haywood v. Hay *205 wood, 79 N. C., 42; Pegram v. Armstrong, 82 N. C., 326.” Bratton v. Davidson, 79 N. C., 423; Shober v. Wheeler, 144 N. C., 409; Oldham v. Reiger, 145 N. C., 254; Clark v. Homes, 189 N. C., 703. In the present action the administrators and sureties on their bond, the administrators personally, heirs at law and distributees and widow of N. B. McCanless, are all made parties defendant. Plaintiff has obtained a judgment of $4,000 and interest against the administrators and it is unpaid. As to surety, see C. S., 358. The action is in the nature of a bill to surcharge and falsify the account. It was well settled under the old practice that an action of this kind could be brought in the court of equity. C. S., 135 (eh. 241, sec. 6, Laws 1876-7), supra, is in confirmation. We think the Superior Court had jurisdiction of the defendants and the subject of the action. As to the second ground of demurrer, that the complaint does not state facts sufficient to constitute a cause of action, this cannot 'be sustained. In Bank v. Felton, 188 N. C., at p. 385, it was held: “The contention by the defendants that the plaintiffs should have sued M. J. Felton, executor of Thomas Felton, and not the defendants, legatees and beneficiaries under the will of Thomas Felton, cannot be sustained. The record shows, and it is not disputed, that M. J. Felton was duly appointed and qualified as executor of the last will and testament of Thomas Felton. As executor, he advertised, as required by law, and, after the expiration of the year, filed a final account with the clerk of the Superior Court and settled with the legatees and beneficiaries. The suit is allowable by statute in such cases for the debts of such decedent unpaid and the extent of liability fixed. Consolidated Statutes on the subject are as follows: sections 45, 59, 60, 76 and 101.” When suit was brought against the administrators by plaintiff, at May Term, 1925, an issue was found that the administrators did not advertise for creditors as required by C. S., 45. We can consider on a demurrer only such facts as appear in the complaint. Any other facts make it a “speaking- demurrer.” Such extrinsic matters cannot be considered. Way v. Ramsey, 192 N. C., 549; Brick Co. v. Gentry, 191 N. C., 636. The defendants contend that the plaintiff^ complaint is in violation of C. S., 511, subsec. 5, as follows: “Sec. 511. The defendant may demur to the complaint, when it appears upon the face thereof, either that . . . (5) Several causes of action have been improperly united.” Defendants in their brief, after setting out the several alleged causes of action relied on by plaintiff, contend that they are improperly united and say: “This, briefly, is a concise statement of the alleged causes of *206 action that plaintiff has joined in one single cause of action in a complaint both voluminous and ambiguous.” “If irrelevant or redundant matter is inserted in a pleading, it may be stricken out on motion of any person aggrieved thereby, but this motion must be made before answer or demurrer, or before an extension of time to plead is granted. When the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to he made definite and certain hy amendment C. S., 537. The causes of action are thrown together in no very logical way, but they are not demurrable as they are all bottomed on a common liability — all in some way interested in the subject of action or transaction connected with same subject of action. Under our Code the restrictions or joinder have been relieved somewhat by a liberal interpretation of the “same transaction.” The modern decisions tend to freedom of joinder, and elementary restrictions on joinder of actions in both complaints and counterclaims. If any of the causes of action are good, the demurrer cannot be sustained. In Blackmore v. Winders, 144 N. C., at p. 218, it is said: “Pomeroy on Rem., sec. 577: ‘Where a demurrer is filed to several causes of action or to more than one defense, on the ground that no cause of action or no defense is stated, if there is a good cause of action in the one case or one sufficient defense in the other, the demurrer will be overruled as to all, and the same rule (the author says) also applies to a demurrer, for want of sufficient facts, by two or more defendants jointly; it will be overruled as to all who unite in it, if the complaint or petition states a good cause of action against even one of them.’ ” Griffin v. Baker, 192 N. C., 298. It may be noted in cases of misjoinder, C. S., 516, is as follows: “If the demurrer is sustained for the reason that several causes of action have been improperly united, the judge shall, upon such terms as are just, order the action to be divided into as many actions as are necessary for the proper determination of the causes of action therein mentioned.” As heretofore said, the Superior Court has equitable jurisdiction in matters of this kind, as well as under C. S., 135, but it may also be noted that the concluding part of C. S., 135, is very broad and says “or to grant other relief as the nature of the case may require.” This indicates elastic power. See Killian v. Hanna, ante, p. 17. The demurrer must be Reversed.