#### ATTAS BRADSHAW et al. v. THE CITIZENS BANK OF BURNSVILLE et al.

(Filed 22 December, 1917.)

Former Actions — Pleas in Bar — Actions—Executors and Administrators— Fraud.

’ Pendency of proceedings brought before the clerk wherein the executors of a deceased person are sought to be disallowed a credit for the amount of a certain note alleged to have arisen out of transaction with a bank, involving fraud on the deceased, and transferred to the civil issue docket, to which the bank was not a party, cannot successfully be pleaded in bar to another action wherein the heirs at law are parties, joining the executors for conformity, brought against the bank to recover moneys it had wrongfully received on account of the alleged fraud.

*22Civil actiow tried before Garter, J., at July Term, 1917, of Mitchell.

In tbe answer defendants pleaded tbe pendency of another action pending in tbe Superior Court of Yancey County in bar of tbe prosecution of tbis. Tbe court sustained tbe motion to dismiss', tbe action upon tbe fact of tbe pleadings, and plaintiffs appealed.

Pless & Wmb orne, W. G. Newland, W. L. Lamber, and 8. J. Ervin for plaintiffs.

Merrimon, Adams & Johnston, J. Bis Bay, Hudgins & Watson, and Charles Hutchins for defendants.

Beoww, J.

Tbe action wbicb tbe defendants plead in bar of tbe prosecution of tbis action is entitled Lillie Phillips et al. v. J. B. Hensley et al., Executors of B. S. Hensley, and was decided in an- opinion by the writer at tbe present session of tbis Court. Tbe opinion is referred to for a statement of tbe facts as explanatory of tbis case.

It will be seen that tbe aforesaid case was a proceeding instituted before tbe clerk of'the Superior Court of Yancey County for tbe purpose of passing upon and auditing tbe final account of tbe executors of B. S. Hensley. Tbe proceeding was brought into tbe Superior Court by appeal, and beard and determined therein upon tbe sole question as to whether tbe executors were entitled to a credit for $14,000,' being a note they claimed to have paid in full to tbe Citizens Bank of Burnsville. Tbe defendant was not a party to that proceeding and bad no interest in it.

Tbe plaintiffs in tbis action are tbe distributees and devisees of B. S. Hensley, and tbe defendants are bis executors and tbe said bank. Tbe executors are made parties as tbe personal representatives of tbe estate.

Tbe complaint alleges that tbe executors wrongfully paid said $14,000 note, that such payment was induced by tbe fraud, collusion, and conspiracy of tbe officers of tbe bank with J. B. Hensley, the managing and controlling executor, who bad been cashier of said bank and as such bad embezzled large sums of tbe bank’s money. Tbe complaint alleges:

> “That tbe said bank, in tbis conspiracy to take tbe property of tbe distributees and heirs at law of tbe said B. S. Hensley, and in tbe execution of said conspiracy so entered into with James B. Hensley* took property of tbe estate of B. S. Hensley of wbicb tbe said bank then bad possession and control in connection with tbe said James B. Hensley wbicb was of at least tbe value of $20,000, but wbicb amounts and values were arbitrarily fixed by tbe said bank at $12,710.08, well knowing at tbe time that tbe plaintiffs and other children of B. S. Hensley were tbe owners of and entitled to said property. Tbis amount arbitrarily *23fixed by tbe said bank as tbe value of tbe property converted, wbieb property these plaintiffs allege consisted of notes, bank stocks, other commercial paper and other personal property and lands, were incorrect and were of much greater value than that allowed by tbe said bank as hereinafter alleged; that James B. Hensley and Molton Hensley have been made parties defendant herein as executors for the reason that the plaintiffs are advised and believe that this action cannot be maintained against the defendant, the Citizens Bank of Burnsville, in the absence of such executors, and not for the reason that plaintiffs are asking any judgment against said defendant’s executors.”

It is thus seen that this action is brought against the bank to recover a large sum of money alleged to have been obtained from the executors illegally. The plaintiffs are but following the funds and property to which they aver they are entitled and which have been turned over to the bank in violation of their rights. The judgment in the proceeding-in the Superior Court of Yancey County above referred to can in no way affect the determination of this action. The causes of action are not the same and the bank is no party to that proceeding. Emery v. Chappel, 148 N. C., 327; Woody v. Jordan, 69 N. C., 189; Swepson v. Harvey, 69 N. C., 387.

It is manifest that plaintiffs can have no relief against the defendant bank in the proceeding in Yancey. The Court erred in sustaining the plea.

Reversed.