When this case was here before (McNeill v. McBride,112 N.C. 408), the Court said: "The objection that the plaintiff Caroline McNeill cannot subject the land of the intestate until a judgment has been obtained upon the guardian bond executed by him would seem to be sustained by the case of Williams v. McNair, 98 N.C. 332." The defendant, however, was then held barred from a judgment dismissing the action because the demurrer admitted the liability, but now, an answer having been filed, it has been found as a fact that no judgment has been obtained against the surety ascertaining the (346) amount of the indebtedness, nor that there is any. While a judgment has heretofore been obtained against the guardian individually in the probate court of Cumberland County, no judgment has yet been had upon the guardian bond, a proceeding for that purpose being now pending in the Superior Court of Cumberland. The judgment against the guardian was held conclusive against the surety on the bond in Brown v. Pike, 74 N.C. 531, but since then this has been changed by the Act of 1881, now The Code, sec. 1345. Moore v. Alexander, 96 N.C. 34. *Page 236
The judgment against the guardian is now only presumptive evidence, which the surety is allowed to rebut if he can, and which his administrator is now seeking to do in the action pending in Cumberland County. The plaintiffs contend, however, that, though judgment should be obtained to ascertain the liability of the surety on the guardian bond before subjecting the real estate of the deceased surety or the proceeds thereof in the hands of his heirs at law, both remedies can be had in this action (The Code, sec. 267), and that if the venue should have been in Cumberland County, where the guardian resided and the bond was filed (The Code, sec. 193; Cloman v. Staton, 78 N.C. 235), objection on that ground was waived by failure to move for removal of the cause to that county before filing answer. The Code, sec. 195; Clark's Code (2 Ed.), p. 112. If both these positions be conceded, still the defendant in his answer (par. 6) has pleaded that an action was already pending in Cumberland County when this action was brought, and is still pending there, in favor of plaintiff and against the guardian bond to ascertain the amount of the liability of the surety thereon, if any, and the court below finds the fact as thus alleged in the answer.
The court below therefore properly held that this action, (347) subsequently begun for the same purpose, could not be maintained (Claywell v. Sudderth, 77 N.C. 287; Woody v. Jordan,69 N.C. 189), and if it cannot be maintained to ascertain the extent of the liability of the surety, it cannot be upheld for the purpose of subjecting the realty or proceeds therefore, since that must be based on an adjudication of the debt. Williams v. McNair, supra.
No error.
Cited: Martin v. Buffaloe, 128 N.C. 309; Emry v. Chappell, 140 N.C. 330.