Austin v. Calloway

• Decision Date: 25 November 1913
• Citation: 80 S.E. 3601,73 W.Va. 231
• Court: West Virginia Supreme Court
• Parties: AUSTIN, Sheriff. v. CALLOWAY.

80 S.E. 3601

73 W.Va. 231

AUSTIN, Sheriff.

v.CALLOWAY.

Supreme Court of Appeals of West Virginia,

Nov. 25, 1913.

(Syllabus by the Court.)

1. Executors and Administrators (§ 444*)— Action of Administrator—Declaration-Sufficiency.

A declaration by an administrator, suing as such, upon a cause of action accruing to his intestate in his lifetime, which fails to aver that plaintiff was appointed and qualified as such administrator, is bad on demurrer.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 1813-1817, 1837-1841; Dec. Dig. § 444.*]

2. Executors and Administrators (§ 443*)— Action by Administrator—Declaration-Sufficiency.

Such a declaration in assumpsit upon a note payable to his intestate, and past due at his death, need not aver a promise to the administrator. It is sufficient to aver a promise to his intestate and a breach by nonpayment to either his intestate or himself.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 1798-1811. 1823-1830, 1842-1845, 1848; Dec. Dig. § 443.*]

3. Executors and Administrators (§ 426*)— Right of Action—Notes—Appraisement.

Section 12, c. 56, Acts 1907 (Code Supp. 1909, c. 85), respecting the appraisement of notes, bonds, and evidences of debt owned by a decedent at the time of his death, does not apply to evidences of debt not taxable in this state owned by a nonresident at the time of his death, and sent to an attorney in this state, by his personal representative, for suit thereon against the debtor, who resides here.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 1663, 1665; Dec. Dig. § 426.*]

4. Evidence (§ 178*) — Lost Instrument — Secondary Evidence.

When it is proven that a note declared on has subsequently been lost, secondary evidence of its contents is admissible.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 580-594; Dec. Dig. § 178.*]

5. Lost Instruments (§ 22*) — Subsequent Loss—Effect—Proceedings.

Loss of a note, occurring after it has been declared on, does not abate the suit or require amendment of pleadings.

[Ed. Note.—For other cases, see Lost Instruments, Cent. Dig. §§ 47-50; Dec. Dig. § 22.*]

6. Lost Instruments (§ 14*)—Jurisdiction— Action at Law.

A court of law has jurisdiction of an action to recover upon a lost note when it is clearly established that plaintiff had title to such note, and that its loss occurred after it became payable.

[Ed. Note.—For other cases, see Lost Instruments, Cent. Dig. §§ 27-29; Dec. Dig. § 14.*]

Error to Circuit Court, Mason County. Action by John P. Austin against John Calloway. Judgment for-plaintiff, and de fendant brings error. Reversed and remanded.

Somerville & Somerville, of Pt. Pleasant, for plaintiff in error.

J. E. Beller and S. P. Bell, both of Pt Pleasant, for defendant in error.

WILLIAMS, J. John P. Austin, sheriff of Mason county, and as such administrator of Lucy Stallard, deceased, recovered a judgment against John Calloway for $173.46, and he was awarded this writ of error thereto. The action was upon a note dated October 16, 1907, and payable to plaintiff's intestate one day after date, signed John Calloway. Defendant demurred, and pleaded non est factum and non assumpsit. The demurrer was overruled, and on the issues of fact the jury found for plaintiff. A number of errors are assigned. First, that it was error to overrule the demurrer to the original declaration. The grounds of demurrer are (1) that the declaration does not aver that plaintiff * was appointed administrator, and (2) that it does not aver a promise made to plaintiff.

While it appears from the form of the declaration that plaintiff sues in a representative capacity, the declaration does not aver the fact of plaintiff's appointment and qualification as administrator. Such an averment was necessary in order to show his authority to bring the action. The rule is laid down in 8 Enc. PI. & Pr. 665, as follows; "In a suit by an executor or administrator in his representative capacity, the plaintiff should allege in a direct or issuable form that he is executor or administrator, and that he brings the suit in his representative capacity." The action is upon a note which became due in the lifetime of plaintiff's intestate, and therefore the personal representative only can bring an action on it The declaration in such case should aver the fact of plaintiff's appointment and qualification, else it will be held bad on demurrer. "A declaration by an executor or administrator upon a cause which can be maintained only in a representative capacity, and which does not contain a sufficient averment of that capacity, is bad on demurrer." Foster, Adm'r, v. Adler, 84 111. App. 654; Collins v. Ayres, 13 Ill. 358.

In discussing the sufficiency of the complaint by an administrator, which was objected to on the ground that it did not sufficiently allege plaintiff's appointment as administrator, the Supreme Court of Minnesota, in the case of Chamberlain, Adm'r, v. Tiner, 31 Minn. 372, 18 N. W. 97, says: "It is not now necessary, as formerly, to make profert of letters testamentary or of administration. But it is necessary for a plaintiff who sues as executor or administrator to allege in a direct and issuable form that he is such. This properly should be done by alleging that he is executor or administrator

[(73 W.Va. 231) 362]

by virtue of letters issued by a probate court of some county, giving the name of the court and the term at which the letters were granted."

"When a party sues, as executor, eta, there must be a substantial averment in the pleadings, showing that he sues in his representative capacity, and nothing by intendment can be taken to supply the want of such an allegation." Sabin, Adm'r, v. Hamilton, 2 Ark. 485.

In Judah, Ex'r, v. Fredericks, 57 Cal. 389, the complaint was held bad on demurrer for failure to properly aver plaintiff's official character. The following cases are also directly in point: Pelletreau, Ex'r, v. Rath-bone, 1 N. J. Eq. 331; State, to Use, etc., v. Matson et al., 38 Mo. 489; Sheldon, Adm'r, v. Hoy, 11 How. Prac. (N. Y.) 11; Rowan v. Lee, 3 J. J. Marsh. (Ky.) 97; Smith v. Zimmerman, 29 Mo. App. 249; Otto v. Regina Music-Box Co. (Circuit Court for District of New Jersey) 87 Fed. 510; Wilson v. Hall, 13 Tex. Civ. App. 489, 36 S. W. 327.

At the common law it was not only necessary for a plaintiff, suing in a representative capacity, to aver his appointment and qualification as such personal representative, but also to make profert of letters testamentary, or of letters of administration. This latter requirement, however, has been abolished both in England and in the two Virginias. 3 Rob. Prac. 256; 5 Rob. Prac. 35; section 33, c. 125, Code 1906. But this statute dispensing with the necessity of making profert of commission of administration or letters testamentary does not avoid the necessity of plaintiff's averring his appointment and qualification as such personal representative. If the defendant in this case had not demurred, his pleas to the general issue might have operated as an admission of plaintiff's capacity to sue, under authority of the case of McDonald, Adm'r, v. Cole, 46 W. Va. 186, 32 S. E. 1033, and the authorities cited in the opinion at page 187, to which we add 8 Enc. Pl. & Pr. 673. McDonald, Adm'r, v. Cole, supra, holds that the capacity of plaintiff who sues as administrator or executor can be put in issue only by the plea, ne unques administrator, or executor. But the rule there discussed we understand to apply even when capacity, which is an issuable matter, has been properly averred. That case does not decide that such an averment is not necessary; it only decides that a plea of ne unques alone can raise an issue as to the averment when made, and that a general plea admits plaintiff's authority to sue. But in the present case the sufficiency of the declaration is challenged by demurrer, and we see that a material averment is omitted from it Capacity had not been averred, and therefore a plea ne unques was unnecessary; the omission was properly taken advantage of by demurrer. We find, also, in the form books that the form of a declaration by a personal representative, for a cause of action arising during intestate's lifetime, contains an averment as to his appointment and qualification as such personal representative. Gregory's Forms, Nos. 21 and 136, pp. 22 and 272; 4 Min. Inst. 1697; Rob. Forms, 415.

The cause of action arose in the lifetime of plaintiff's intestate, and therefore It was not necessary for plaintiff to allege a promise made to himself. He does allege a promise made to his intestate and a breach of that promise in her lifetime, and he also alleges a continuation of that breach by failure to make payment to him as her administrator. In this respect the declaration is good.

It is urged that judgment should not have been rendered on the note because it was not appraised. Section 12 of chapter 56, Acts 1907 (Code Supp. 1909, c. 85), provides for the appraisement of notes, bonds, and evidences of debts owned by a decedent at the time of his death, and further provides that no...