Privette v. . Morgan

Seawell, J. Tbe appeal poses tbe question wbetber there was error in declining either or both of tbe motions made by tbe defendant: To strike from tbe complaint certain objectionable matter specifically pointed out; or to strike tbe complaint from tbe files and order tbe plaintiffs to replead. Tbe first motion, if made in time, as it is here, involves a matter of right. Parrish v. Atlantic Coast Line R. R. Co., 221 N. C., 292, 20 S. E. (2d), 299; Hill v. Stansbury, 221 N. C., 339, 20 S. E. (2d), 308; Patterson v. R. R., 214 N. C., 38, 198 S. E., 364. Tbe second, viewed as a motion to require an amendment or reformation of tbe complaint, to make it more certain, is within tbe discretion of tbe lower court. Womack v. Carter, 160 N. C., 286, 75 S. E., 1102; Tickle v. Hobgood, 212 N. C., 762, 194 S. E., 460. We examine tbe questions presented in that light. Tbe gravamen of plaintiffs’ case is tbe alleged fraudulent conduct of tbe defendant in using tbe orders and decrees of tbe Clerk, acting within bis statutory jurisdiction, and tbe offices of various commissioners duly appointed or acting with statutory authority, as devices in furtherance of a scheme to acquire and convert to her own use tbe personal and real property of tbe estate committed to her care, in violation of her duties as administratrix and guardian, and to tbe injury of her wards who now claim tbe property as heirs and distributees. In tbe course of tbe pleading a direct attack is made on every decree and judgment made by tbe court in tbe course of tbe administration which might affect tbe present claim. Tbe principal attack is made on tbe order to sell tbe lands of decedent to make assets, tbe sale and order of confirmation, and tbe acquisition thereof by tbe defendant out of her own funds; tbe order permitting tbe administratrix to rent tbe lands; tbe allotment of tbe widow’s dower, with tbe orders relating thereto, and tbe assignment of tbe widow’s year’s allowance. In addition to this tbe complaint contains many recitals and denunciations of fraud in matters not necessary to a statement of any cause of action suggested in tbe pleading, and which are obviously in disregard of tbe requirements of G. S., 1-122, witb respect to tbe nature and contents of pleadings, and prejudicial to tbe defense. Tbe liberality which we are required to give pleadings does not go to tbe extent of ignoring irrelevant, redundant or unnecessary matter in tbe face of a motion to strike, asserted as a matter of right. ¥e return for consideration to the' allegations relating to tbe acts of tbe defendant under authority of tbe orders and decrees above mentioned. There is no demurrer to tbe complaint or exception taken to tbe jurisdic *268 tion of tbe Superior Court to vacate tbe orders and decrees of tbe probate court in its jurisdiction, already acquired, tbrougb annulment of its judicial acts, thus providing a nunc pro tunc administration in the Superior Court to be accomplished in a matter of hours. Tbe plaintiffs profess to bring this action under authority of G. S., 28-147, which provides: “Suits for accounting' at term. — 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.” After long years of resort to this enabling statute the jurisdiction it confers on the Superior Court has not been clearly defined. It has frequently been declared to be concurrent with that of the Probate Court in matters of special proceedings, where it applies. Fisher v. Trust Co., 138 N. C., 91, 98, 50 S. E., 592; Shober v. Wheeler, 144 N. C., 403, 57 S. E., 152; Leach v. Page, 211 N. C., 622, 191 S. E., 49; S. v. McCanless, 193 N. C., 200, 204, 135 S. E., 71. Many general expressions will be found touching the jurisdiction of the court, of which the following are typical: “In all these cases it is held that concurrent jurisdiction of the probate court is conferred on the superior court in a civil action to settle estates and to subject real estate to the payment of debts.” Shober v. Wheeler, supra, p. 282. Leach v. Page, supra, p. 625, “The distributees of an estate may bring suit originally in the superior court against an administrator for an accounting and for a breach of his bond.” But, in every instance of which we are aware, where the jurisdiction of the Superior. Court has been invoked, these general terms are subject to limitations of a practical nature as viewed from their use within the frame of the particular case. We have found no case where the jurisdiction has been extended to a step by step annulment of the judgments and decrees made by the probate court. It is true that a void judgment may be attacked by motion, in the cause, or an independent action, but upon the allegations of the complaint we find but one transaction that might definitely be pursued as of that nature; that is the allegation that the administratrix became the purchaser of the lands of the estate, sold to make assets, and took title in her own name. In this case it appearsi from the complaint that the lands were under mortgage, that the administratrix had a dower interest therein, and the reasonable inference is that she bought out of her *269 own funds to protect her interest in the lands, which, she had a right to do, under an exception to the rule. Froneberger v. Lewis, 79 N. C., 426. As suggested by the Court in Edney v. Matthews, 218 N. C., 171, 172, 10 S. E. (2d), 619, perhaps the court is not required to raise the question of jurisdiction sua sponte, and, therefore, we reserve consideration of this question until decision is more urgently demanded. But see Shepard v. Leonard, 223 N. C., 110, 25 S. E. (2d), 445; Hopkins v. Barnhardt, 223 N. C., 617, 27 S. E. (2d), 644; S. v. Miller, 225 N. C., 213, 34 S. E. (2d), 143; S. v. Morgan, 226 N. C., 414, 38 S. E. (2d), 166. However this may be, we are of the opinion that the general denunciation of the acts of the administratrix as fraudulent in connection with the orders and decrees above mentioned are fatally defective in not sufficiently particularizing the acts of defendant upon which the charge is based and do not, therefore, raise issues cognizable by the Court. Development Co. v. Bearden, ante, 124, 127, 128. In its factual situation and principles involved, the case before us is so similar to Development Co. v. Bearden, supra, that its decision may be controlled by that case. Without prolonging the discussion or taking up the space required for a restatement of the matters which must be deleted from the complaint, we refer to the defendant’s first motion to strike, set out in the record, which we are constrained to hold should have been allowed. We are advertent to the fact that the body of the plaintiffs’ action is thus removed; but they are still at liberty, by repleading, to assert any substantial right they may have under the cited statute. Perhaps, if we were dealing with a question of right under the motion to strike out the complaint, which we are treating as a motion to amend under the statute, our task would be simpler; but as we have stated, action thereupon was within the discretion of the court below, a discretion with which we do not interfere. The judgment of the court below upon defendant’s motion to strike, is reversed. The cause is remanded for judgment in accordance with this opinion. Reversed and remanded.