Thomas v. . Ellington

Hoke, J. Revisal, sec. 421, enacts: “All actions upon official bonds or against executors and administrators in their official capacity shall be instituted in the county where the bonds shall have been given, if the principal or any of the. sureties on the bond is in the county; if not, then in the plaintiff’s county.” On the record it was made to appear that the father of the defendant R. P. Ballinger died resident in Guilford County, and that defendant Dora T. Ballinger duly qualified in said county as his administratrix,. and that a suit to adjust and settle the estate is now pending in that county; that plaintiff heretofore sold to defendants Ellington and R. P. Ballinger a tailoring business and outfit and took and holds three notes for the purchase price in the aggregate sum of $200, and, as security for said notes, a “pledge” of the property sold, and, as further security, R. P. Ballinger assigned to plaintiff “all his interest due him from his father’s estate.” It is alleged in the complaint that the business and property sold has been entirely disposed of, and the action is to recover judgment on the $200 note and to condemn and apply the interest due R. P. Ballinger from his father’s estate to its payment. The note for $200, being of itself within the jurisdiction of a 'justice of the peace, and the complaint having alleged that the property sold had been entirely disposed of, the only jurisdictional fact alleged in the pleadings or appearing of record is an action to recover from the administratrix the amount due R. P. Ballinger from his father’s estate. This involves an *133 account and settlement of said estate, and, by tbe express words of tbe statute, sucb an action must be instituted in tbe county where tbe administrator qualified. The case of Roberts v. Connor, 125 N. C., 45, does not conflict with tbis position. That was a suit wbicb concerned tbe conduct of a bank operated by an executor, and tbe decision was put on tbe express ground that tbe official acts and conduct of tbe executor was in no wise involved. Tbe judgment removing tbe cause is Affirmed.