#### JOE EVANS, JR., v. CREED C. MORROW and CREED C. MORROW, Administrator.

(Filed 2 May, 1951.)

1. Venue § lb—

The statutory requirement that an action against an administrator in bis official capacity must be instituted in tbe county in wbicb tbe administrator qualified, G.S. 1-78, does not preclude an administrator from being joined as an additional defendant in an action pending in a county other than the one of his qualification upon a finding that the administrator is a necessary party to the action. G.S. 1-7S provides that such actions “must be instituted” in the county of qualification, whereas G.S. 1-76, dealing with venue, uses tbe phrase “must be tried.”

2. Venue § 8—

Venue is not jurisdictional.

Appeal by defendant individually and as administrator from Patton, Special Judge, October Special Term, 1950, of MeckleNbueg.

Civil action to recover damages arising from alleged negligent tractor-trailer-automobile collision.

Plaintiff, a resident of Mecklenburg County, instituted suit 9 March, 1950, against Creed C. Morrow, a resident of Rowan County, alleging that tbe defendant was tbe owner of a 1948 Studebaker Sedan wbicb be maintained for tbe use and convenience of bimself and other members of bis family, including bis son, Creed 0. Morrow, Jr.; that on 11 February, 1950, tbe defendant’s son, Creed C. Morrow, Jr., was driving, operating and using the defendant’s Studebaker Sedan with bis consent, permission and knowledge, as bis agent and in furtherance of bis business; that on said date plaintiff’s G-.M.O. tractor-trailer, loaded with merchandise, was being driven on Highway No. 521 near Lancaster, S. O.; that tbe two vehicles collided as a result of tbe negligence of Creed C. Morrow, Jr., driver of defendant’s automobile, causing damage to plaintiff’s tractor and trailer and tbe cargo of merchandise.

Tbe defendant filed answer, denied that be was tbe owner of tbe Studebaker Sedan or that be maintained it as a family car, as alleged, also *563denied tbat Creed C. Morrow, Jr., was bis agent or about bis business on tbe occasion in question.

Tbe defendant, on being examined adversely by tbe plaintiff, revealed tbat tbe Studebaker Sedan was purchased by bis son, Creed C. Morrow, Jr., and tbat be signed tbe title-retained contract because bis son was a minor at tbe time. It is alleged by tbe plaintiff, however, tbat tbe title of tbe car is in tbe name of tbe defendant, tbe license plates also being issued in bis name, thus raising a question as to tbe ownership of tbe automobile at tbe time of tbe collision. Creed C. Morrow, Jr., was billed in tbe accident and tbe defendant has qualified as bis administrator in Eowan County; wherefore, plaintiff asked tbat tbe defendant as administrator of bis son’s estate be made a party defendant in this action so tbat tbe whole controversy may be determined in a single action.

Tbe court found as a fact tbat tbe administrator of Creed C. Morrow, Jr., was a necessary party and ordered tbat be be brought in by summons, etc., and allowed time to answer.

Tbe defendant, Creed C. Morrow, individually, and as administrator of bis son’s estate, appearing specially in tbe latter capacity, excepts and appeals, assigning error.

Smaihers <& Carpenter for plaintiff, appellee.

Frank H. Kennedy and P. D. Kennedy, Jr., for defendant, appellant.

Stacy, 0. J.

Tbe appellant says that as actions against administrators in their official capacity, or upon their official bonds, may be instituted only in tbe county of their qualification, G.S. 1-78, tbe court was without authority to order Creed C. Morrow as administrator of bis son’s estate be made a party in this suit pending in Mecklenburg County, tbe county of bis qualification as administrator being Eowan, citing as authority for tbe position tbe above statute and Stanley v. Mason, Admr., 69 N.C. 1.

Tbe point raised is controlled by what was said in Latham v. Latham, 178 N.C. 12, 100 S.E. 131. Tbe statute applies to original actions “instituted,” i.e., originally commenced against personal representatives, and not to actions already pending in which it may be proper or necessary to make them parties. In tbe cited ease, an executrix qualified in Craven County, was made a party defendant to an action pending in Beaufort County. Tbe executrix appeared and asked for a removal of tbe action to Craven County as a matter of right. Tbe motion was denied, and on appeal tbe ruling was affirmed, tbe Court pointing out tbat nothing is said in tbe statute about tbe place of trial, only tbat such original actions “must be instituted” in tbe county of qualification, whereas in G.S. 1-76, dealing with venue, tbe language is “must be tried,” etc., tbe difference in phraseology being regarded as significant.

*564Tbe question is not jurisdictional, but one of venue. Wiggins v. Finch, 232 N.C. 391, 61 S.E. 2d 72, and cases there cited.

Affirmed.