Funk v. Funk

• Decision Date: 06 October 1924
• Docket Number: 10906.
• Citation: 76 Colo. 45,230 P. 611
• Parties: FUNK v. FUNK.
• Court: Colorado Supreme Court

230 P. 611

76 Colo. 45

FUNK v. FUNK.

No. 10906.

Supreme Court of Colorado

October 6, 1924

Department 2.

Error to District Court, El Paso County; Wilbur M. Alter, Judge.

Action by Samuel T. Funk, as administrator of the estate of Nathaniel Funk, deceased, against Mart Funk. Judgment for defendant, and plaintiff brings error.

Reversed and new trial granted.

James H. Rothrock, of Colorado Springs (H. J. McCoy, of Colorado Springs, of counsel), for plaintiff in error.

Orr &amp Little and Henry T. McGarry, all of Colorado Springs, for defendant in error.

DENISON J.

Plaintiff in error, plaintiff below, was defeated in a suit to recover of defendant contribution as cosurety on a promissory note. He brings the case here on error.

Plaintiff was appointed administrator of the estate of Nathaniel Fund by a Missouri probate court. He was compelled by the judgment of that court to pay a note on which the deceased and, as he claims, the defendant were sureties, and brought the suit now under question. He did not file a copy of his letters nor give bond as required by the Colorado Statutes, C. L. §§ 5277-78.

The substance of the allegations of the amended complaint which are pertinent to the questions now raised is that the plaintiff is the duly appointed, qualified, and acting administrator of the estate, and that defendant resides in El Paso county, Colo., that the note was given, with his intestate and defendant as sureties, etc., and that a part remained unpaid; that the balance was allowed against the estate by the Missouri court, and plaintiff had to pay it. There was no allegation with respect to compliance with the Colorado Statutes.

The defendant answered, denying the execution of the note, and prefaced the answer with a demurrer: (1) For want of facts (2) that the statute of limitations had run; and (3) that the amended complaint stated a new cause of action. Neither demurrer nor answer said anything with respect to compliance with the Colorado Statutes nor of plaintiff's capacity to sue, but, when the facts concerning these points appeared in evidence, the court sustained the demurrer, and, after plaintiff declined to amend, dismissed the case.

The substance of the sections of our statute above cited is that upon filing his letters, a foreign administrator may prosecute or defend an action, but the court shall not grant him authority to do so until he has filed the letters and a bond. The question, therefore, was of plaintiff's 'legal capacity to sue,' a ground not specified in the demurrer. This objection, if it appeared on the face of the complaint, should have been taken by demurrer, if not, then by answer, and, since the objection was not taken by demurrer or answer, it was waived. Code 1921, §§ 56, 57, 60, 61. The objection does not go to jurisdiction. The court had power to try and determine the case, and had jurisdiction of the persons by appearance and...