State Ex Rel. Thomasson v. Patterson ( 1938 )

Barnhill, J.

The defendant, in demanding a removal of this cause to Swain County as a matter of right, relies upon C. S., 465, in which it is provided that: “All actions upon official bonds or against executors and administrators in their official capacity must be instituted in the county where the bonds were given, if the pi’incipal or any surety on the bond is in the county; if not, then in the plaintiff's county.”

This section seems to be incomplete in its terms. It provides that all actions upon official bonds, or against executors and administrators in their official capacity, must be instituted in the county where the bonds were given if the principal or any surety on the bond is in the county. Where the action is against executors and administrators, but not upon any official bond, it makes no provision for the venue of the suit. However, this Court has construed the statute to mean that suits against executors and administrators in their official capacity must be instituted in the county in which the executor or administrator qualified. Giving force to these decisions an apparent conflict arises in the instant case. This action is upon an official, bond given in Buncombe County, and two of the sureties on said bond resided in Buncombe County and their administrators qualified in that county. On the other hand, the principal on said bond resided in Swain County, and the executrix of his last will and testament qualified in the latter county.

Under the terms of this statute, should defendant’s motion be granted as a matter of right? We must answer this question in the negative.

When there are two acts of the Legislature applicable to the same subject, the terms of which are in conflict, their provisions are to be reconciled if this can be done by fair and reasonable intendment. It is apparent from a reading of this statute that its primary intent was to provide that suits upon official bonds should be instituted in the county where the bonds were given if the principal or any surety on the bond is in the county. Here the bond was given in Buncombe County. The administrator of J. C. Penland, a surety, and the administrator of B. B. Jones, a surety, each lives in Buncombe County. Buncombe County, therefore, is the proper venue, not only by virtue of the fact that the bond, which is the subject matter of the action, was given in Buncombe County, but by virtue of the further fact that the administrators of each of the sureties live in said county. To hold otherwise would merely serve to create confusion and irreconcilable conflicts. Should tbe cause be removed to Swain County for tbe reason now assigned by tbe appealing defendant, tben immediately eacb of tbe other defendants could move for a change of venue to Buncombe for tbe reason that they were administrators of tbe estates of sureties and tbe bond was given in Buncombe County, or else tbe plaintiff would be forced to institute two separate suits, one in Swain County against tbe appealing defendant and another in Buncombe County against tbe other defendants to have bis rights determined.

We therefore bold that tbe provision of C. S., 465, that an action upon an official bond shall be instituted in tbe county where tbe bond is filed, if tbe principal or any one of tbe sureties on said bond resides in said county, is controlling. Actions against executors and administrators in their official capacity, when not upon an official bond filed in some other county, must be instituted in tbe county where tbe executor or administrator qualified. Tbe provision that tbe action must be instituted in tbe county where tbe bond, which is tbe subject matter of tbe action, was filed is dominant. Except where tbe action is on an official bond tbe former decisions of this Court will be adhered to.

Tbe defendant contends that, it being shown that tbe plaintiff admits tbe insolvency of tbe estates of tbe sureties, tbe joinder of tbe administrators of tbe estates of tbe sureties is for tbe purpose of depriving tbe Superior Court of Swain County of jurisdiction. This contention cannot prevail. It is tbe fact that tbe bond was given in Buncombe County and tbe residence of the sureties in that county that fixes tbe venue, not tbe solvency or insolvency of tbe estates of tbe surety. Tbe condition of tbe estates of tbe sureties cannot be held to affect tbe plain wording of tbe statute.

Tbe judgment of tbe court below is

Affirmed.