Redfearn v. . Austin

Smith, C. J. The demurrer can be sustained on neither ground, and was properly overruled. 1. The complaint avers the transfer of the shares of the infant distributees (that is, of the fund to which they are entitled) from the administration to the guardian account, and its being held by the defendant in the latter capacity. Though this transfer does not conclude an inquiry as to the amount due them and tho *415 defendant’s liability upon either bond, the complaint treats the trust fund, as constituting an ascertained and fixed sum, the payment of which is enforced against the guardian bond. But if it were otherwise, the objection would lie against the first action by the infant distributees, for that, the plaintiffs iii this action ought to be parties to that. If the defence is pre-termitted and not set up in that, it is not available in this suit. If the defendant is. content to have a separate controversy about the assets with those who first sue, he cannot obstruct a second and necessary action brought by the other distributee to recover what, is due her, by alleging the non-joinder of the others. A severance in the action is the legal consequence of acquiescence in the bringing of the suit by a part, when all should have been united in it. But the present plaintiffs cannot be associated with the other distributees in prosecuting a suit on the guardian bond, as it is not a security for what is due the feme plaintiffj and she has no interest in common with them in enforcing the obligation of the guardian bond. They, and they alone, can sue on it and recover. 2. The other assigned cause of demurrer is equally untenable. The pendency of a former to abate a later suit, must be between the same parties and for the same cause of action, and such concurrence is necessary upon a demurrer under the Code, § 95, par. 3. Harris v. Johnson, 65 N. C., 478; Woody v. Jordan, 69 N. C., 189; Sloan v. McDowell, 75 N. C., 29. This identity between parties and in the cause of action is not' found in these two actions. The plaintiffs are different, and necessarily different persons; for while the two infant distribu-tees could sue the defendant as administrator and the sureties on his administration bond for a default, as well as could the feme plaintiff, she could not sue upon the guardian bond, or for a liability incurred as guardian, for the reason that the defendant does not sustain this fiduciary relation to her. The causes of action are also essentially unlike. The breach of obligation. *416 assumed in each capacity may furnish a cause of action, but it is not the same cause of action. We therefore approve the ruling of the court and affirm the judgment, and this will be certified to the superior court for further proceedings therein according to law. No error. ' Affirmed.