#### THE NORTHWESTERN BANK, Executor of the Estate of NANCY SMITH DAVIS, Deceased, Petitioner v. NORTH CAROLINA NATIONAL BANK, Respondent

No. *30*

(Filed 14 October 1970)

Appeal and Error § 9— dismissal of moot appeal

Appeal by plaintiff executor in an action seeking an injunction until an order of the clerk of superior court “becomes final for lack of appeal, or until the same is modified, affirmed or reversed on appeal” is dismissed as moot where the Supreme Court, in another case, reversed the clerk’s order and vacated the letters testamentary issued to plaintiff.

Justices Higgins and Huskins took no part in the consideration or decision of this case.

Certiorari to review the decision of the Court of Appeals reported in 8 N.C. App. 333, 174, S.E. 2d 22.

The Northwestern Bank brought this action in the Superior Court of Buncombe County to enjoin the North Carolina National Bank “from prosecuting or causing execution to issue upon the Order of the Clerk of Superior Court of Iredell County with respect to the possession of the property of the Estate of Nancy Smith Davis, deceased, until such time as the Order of the Clerk of Superior Court of Buncombe County becomes final for lack of appeal, or until the same is modified, affirmed or reversed upon the appeal.”

The complaint alleges that Nancy Smith Davis died a resident of and domiciled in Buncombe County, leaving a will which was probated before the Clerk of the Superior Court of Buncombe County, who issued letters testamentary to the plaintiff; the plaintiff took possession of the assets of the estate as executor; the Clerk of the Superior Court of Iredell County admitted a different document to probate as the will of Nancy Smith Davis and issued letters of administration, c.t.a.d.b.n., to the defendant; the defendant filed a motion before the Clerk of the Superior Court of Buncombe County to vacate the letters testamentary issued to the plaintiff and to vacate the order admitting to probate the document first above mentioned; pending the determination by the Clerk of the Superior Court of Buncombe County of such motion to vacate the Buncombe probate and letters, the defendant obtained from the Clerk of the Superior *149Court of Iredell County an order directing the plaintiff to deliver to the defendant all of the properties of Nancy Smith Davis; the Clerk of the Superior Court of Buncombe County thereafter entered his order upon the above mentioned motion of the defendant to vacate the Buncombe probate and letters, finding that Nancy Smith Davis was a resident and domiciled in Buncombe County at her death and was not a resident of or domiciled in Iredell County; the Clerk of the Superior Court of Buncombe County has sole and exclusive jurisdiction over the estate of Nancy Smith Davis; the plaintiff is presently faced with conflicting orders of the respective clerks of the Superior Courts, is subject to an order of execution which may be entered by the Clerk of the Superior Court of Iredell County and has no adequate remedy at law with respect to the possession of the property of the said estate.

A temporary restraining order was entered upon the verified complaint. The defendant demurred to the complaint on the ground that the Court had no jurisdiction over the subject of the action and upon the further ground that the complaint does not state facts sufficient to constitute a cause of action, it appearing upon the face of the complaint that this action constitutes an impermissible collateral attack upon the orders of the Clerk of the Superior Court of Iredell County.

The Superior Court sustained the demurrer upon the ground that the complaint does not state facts sufficient to constitute a valid cause of action, and dissolved the temporary restraining order. The plaintiff appealed to the Court of Appeals, which dismissed the appeal as moot.

*Van Winkle, Buck, Wall, Starnes and Hyde by: Herbert L. Hyde and Larry McDevitt for 'plaintiff.*

*Jordan, Wright, Nichols, Caff rey & Hill and McElwee and Hall, by: Welch Jordan and Edward L. Murrelle for defendant.*

LAKE, Justice.

This action arises out of the controversy involved in the case of *In Re Estate of Nancy S. Davis,*277 N.C. 134, 176 S.E. 2d 825, decided this day, to which reference is made for a more complete statement of the facts of the controversy. In that case, we affirmed the judgment of the Superior Court of Buncombe County, which reversed the order of the Clerk of that Court *150referred to in the complaint in this action. The judgment there affirmed vacated the order of the Clerk admitting to probate the document alleged by the plaintiff to be the will of Nancy Smith Davis and vacated the letters testamentary issued to the plaintiff herein. In the present action, the prayer of the complaint is for the issuance of an injunction until the said order of the Clerk of the Superior Court of Buncombe County “becomes final for lack of appeal, or until the same is modified, affirmed or reversed upon appeal.” The said order having been now reversed and the letters issued to the plaintiff vacated, this appeal is moot.

Appeal dismissed.

Justices Higgins and Huskins took no part in the consideration or decision of this case.