Biggs v. Bowen

BbowN, J. At August Term, 1913, of Bladen Superior Court, the plaintiff was appointed receiver of the Newton-McArthur Lumber Company, which is a North Carolina corporation, with its principal place of business and all of its property in Bladen County. Plaintiff was appointed receiver in an action entitled Harnett Lumber Company v. Newton-McArthur Lumber Company and others, pending in Bladen. At October Term, 1913, of Bladen Superior Court, by consent, said action of Harnett Lumber Company v. Newton-McArthur Lumber Company was removed to the Superior Court- of Cumberland County. On 29 December, 1913, the plaintiff entered into a contract with the defendant Bowen. The other defendants in this action executed Bowen’s bond in the sum of $10,000 for the faithful performance of said contract. This contract was executed in Wake County by the plaintiff, and in Cumberland County by the defendants except Smith, who executed it in Harnett. The plaintiff, at the time of his appointment as receiver, and of the making of the contract with defendant Bowen and of the institution of this action, was a resident of Wake County. The defendants Bowen, McG-ougan and Honeycutt were at said times residents of Cumberland County. Defendant Smith was a resident of Harnett County, and has since removed to Hoke County, and the defendant Ellington is now a resident of Johnston County. [35] Bowen failed to perform said contract, and at tbe September Term, 1914, of Cumberland Superior Court, after due notice to all tbe defendants, tbe court found tbat Bowen bad failed to perform said contract, and directed plaintiff to táke possession of tbe property wbieb bad been turned over to Bowen under tbe contract, and authorized and empowered tbe plaintiff to bring an independent action, if so advised, to recover of Bowen and bis bondsmen damages for breach of said contract. This action was accordingly brought to December Term, 1914, of "Wake Superior Court, to recover damages' for breach of said contract. Tbe venue of this action is governed by Eevisal, sec. 424, wherein it is enacted tbat “In all other cases tbe action shall be tried in tbe county in which tbe plaintiffs or tbe defendants or any of them shall reside at tbe commencement of tbe action.” It is admitted tbat tbe plaintiff resided in Wake at tbe commencement of tbe action, but defendants contend tbat because plaintiff was appointed receiver .in Bladen and afterwards tbe action in which be was appointed was removed to Cumberland, tbe proper venue is tbe latter county. Tbe authorities seem to be uniform tbat in determining tbe residence of fiduciaries for tbe purpose of venue or citizenship, tbe personal residence of tbe fiduciary controls, in tbe absence of statute. This is true as to receivers, trustees, executors and administrators. 11 Cye., 869, and notes. Where plaintiff resides at tbe time tbe cause of action arose has reference to tbe residence of tbe individual bolding tbe office and not to tbe official residence or place where be may have qualified. Smith v. Patterson, 159 N. C., 140; Whitford v. Ins. Co., 156 N. C., 43; Rankin v. Allison, 64 N. C., 674. Tbe receiver in this case is tbe real party in interest within tbe meaning of tbe statute. Eevisal, sec. 400. This applies to a trustee of an express trust. Section 404. Alderson on Eeceivers, 266. In tbe Federal jurisdiction in actions by or against persons acting in a representative capacity, such representatives or fiduciaries stand upon their own citizenship, without regard to tbe citizenship of those whom they represent. 4 Ene. IT. S. Eep., 957. It is uniformly so held by tbe Supreme Court of tbe United States; “Eepresentatives may stand upon their own citizenship in tbe Federal courts, irrespective of tbe citizenship of tbe persons whom they represent, such as executors, administrators, guardians, trustees, receivers,” etc. Mexican Cent. Ry. v. Eckman, 187 U. S., 434; New Orleans v. Gaines, 138 U. S., 434 ; 4 Fed. Stat. Anno., page 293. Affirmed.