Wood v. . Morgan

Furches, J.: The judgment, ordering the removal of 'this action from Rutherford to McDowell county for trial -must be sustained. We-see no reason for distinguishing -it from Stanly v. Mason, 69 N. C., 1; Foy v. Morehead, 69 N. C., 512; Bidwell v. King, 71 N. C., 287. But. it is contended that the cases cited do not apply to .this case, under Section 193, which is claimed to be an *751 amendment of Section 192 of The Code of Civil Procedure, and Clark v. Peebles, 100 N. C., 348, is cited as authority for this contention. It is true that Clark v. Peebles discusses the change of the word “ fiduciary” into the woid official.” But it quotes Stanly v. Mason, Foy v. Morebead and Bidwell v. King, supra, approvingly. And fhere is no intimation in the opinion that this slight verbal ■alteration has changed the law as announced in these -opinions. If we understand the ground upon which the judgment •of the Court is based in Clark v. Peebles, supra, it is that none of the defendants in that case lived in Northampton -county. So, if that case announces a doctrine differing from the former decisions of this Court, (and we do not understand it does,) it does not sustain plaintiff’s contention in this case. Here the administration was in McDowell county, where the defendant then and now resides. The case states that “ it appears from the summons that the action was brought against the defendant, J. L. Morgan, in his individual capacity.” This must mean that the •defendant alone was sued — that he is the only individual sued ; but, as the only ground of complaint — cause of action —alleged against him is that-, as administrator, he neglected and failed to collect in the assets of the estate, and to account and pay them over as the law required, this is certainly an action against him in his “ official ” capacity for not discharging the duties of his office as administrator according to law. No Error. Affirmed.