Opinion
(Filed 31 May, 1939.)
Guardian and Ward § 25: Pleadings § 16 — When the amounts due a ward are admitted or not controverted, the ward may maintain suit to follow the guardianship funds and to hold the bondsmen liable for any deficiency without making the personal representative of the insolvent deceased guardian a party, and defendants' demurrers for misjoinder of parties and causes for want of a necessary party are properly overruled.
APPEAL by defendants from Bivens, J., at December Term, 1938, of MOORE.
Mosley G. Boyette for plaintiff, appellee.
W. R. Clegg for defendant Morgan, appellant.
J. H. Scott for defendant J. R. Brewer, appellant.
Civil action to recover guardianship funds and to hold sureties liable for any deficiency.
Separate demurrers for alleged misjoinder of parties and causes of action were filed by the defendants.
From judgment overruling the demurrers, the defendants appeal, assigning errors.
Absence of a necessary party may be taken advantage of by demurrer, Geitner v. Jones, 173 N.C. 591, 92 S.E. 493, but where amounts due are admitted or not controverted, the ward as against a demurrer for misjoinder of parties and causes may follow guardianship funds, McNeill v. McBryde, 112 N.C. 408, 16 S.E. 841, and hold bondsman liable for any deficiency, without making representative of insolvent deceased guardian party. Humphrey v. Surety Co., 213 N.C. 651, 197 S.E. 137.
In case the amounts alleged to be due are controverted, see Moses v. Moses, 204 N.C. 657, 169 S.E. 273, and McNeill v. Currie, 117 N.C. 341, 23 S.E. 216.
The rulings upon the demurrers will be upheld.
Affirmed.