Hanson v. Blake

CourtSupreme Court of West Virginia
Writing for the CourtROBINSON
Citation60 S.E. 589,63 W.Va. 560
PartiesHANSON . v. BLAKE.
Decision Date18 February 1908

60 S.E. 589
63 W.Va.
560

HANSON .
v.
BLAKE.

Supreme Court of Appeals of West Virginia.

Feb. 18, 1908.


1. Pleading—Declaration—Description op Dependant.

Whether words following the name of defendant are to be deemed descriptive of his person or of the character in which he is sued is to be determined by the allegations of the declaration.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 101-103.]

2. Same.

In an action in which the averments of the declaration are against defendant, and the promises declared upon not stated to be those of the person whom he represents, the words "administrator of, " etc., following defendant's name, are descriptive only of the person of defendant, and the action cannot be considered as against him in representative capacity.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, Parties, § 113.]

3. Executors and Administrators — Proof of Claim—Variance.

Proof of a claim against estate of decedent so recited to be represented by defendant is at variance with such declaration, and inadmissible thereunder.

4. Same—Evidence.

Verdict and judgment upon such declaration, and such proof improperly admitted thereunder, are personal against defendant, clearly erroneous, and must be set aside and reversed.

5. Pleading—Amendment of Declaration.

So long as the form of action is not changed, and the court can see that the identity of the originally intended cause of action is preserved, the particular allegations of the declaration may be changed by amendment in order to cure imperfections and mistakes in the manner of stating plaintiff's case.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 670-083.]

(Syllabus by the Court.)

Error to Circuit Court, Fayette County.

Action by Mary Hanson against J. A. Blake, administrator. Judgment for plaintiff, and defendant brings error. Reversed.

Walker & Summerfield, for plaintiff in error.

M. W. Ryan, for defendant in error.

ROBINSON, J. Plaintiff instituted this action of assumpsit against defendant, styling him in the summons "administrator of Charles Lomadew, deceased." The declaration contains only the common counts, and the allegations therein are directly against defendant, after whose name in the beginning are the words aforesaid. There are no allegations that defendant's decedent was indebted or promised, but that defendant was indebted and promised. The affidavit filed with the declaration follows the same course. The account therewith is for "board, house rent, fuel, and light furnished to Charles Lomadew, " and for waiting on him as nurse during his last illness. No grounds being assigned, demurrer to the declaration was overruled. Upon plea to issue and trial by jury, there was a verdict for $400 against defendant, styled as aforesaid. Motion to set aside the verdict as being contrary to law and the evidence was overruled, and defendant excepted. Motion in arrest of judgment was overruled, and exception thereto taken; and thereupon judgment followed. This judgment is that "plaintiff do recover of and from the defendant the sum of, " etc. There is no recital that it is to be satisfied out of the goods and chattels In the hands of defendant, as such administrator, to be administered.

Error is assigned in overruling the demurrer; in permitting plaintiff to introduce testimony in the case without proper bill of particulars; in refusing defendant's motion to exclude plaintiff's evidence as irrelevant, incompetent, insufficient, and at variance with the allegations of the declaration; in refusing to set aside the verdict; and in overruling motion in arrest of judgment. It is insisted that such judgment is personal as to defendant, and not against him in his capacity as such administrator. Exception to overruling the demurrer cannot avail, since no grounds of demurrer were assigned. Code 1899, c. 125, § 29 [Code 1906, § 3849]; Kobntz v. Koontz, 47 W. Va. 31, 34 S. E. 752. Besides, the declaration is clearly sufficient in law to support action against the defendant personally, as hereinafter stated. There being no exception below to the insufficiency of the account or bill of particulars filed with the declaration, and, in view of our conclusion herein, we need not discuss the assignment relating to such insufficiency. Plaintiff's evidence is wholly at variance with her declaration. This evidence is directed in support of a claim against the estate of Charles Lohmedieu, deceased, and it is not contended that it has any force as sustaining liability on the part of defendant personally. But it is said that the action is against defendant as administrator of said decedent. It is not so averred in the declaration. The mere words "administrator of Charles Lomadew, deceased, " following the name of defendant in the writ and declaration, do not so make it. Such words are merely descriptive of the person of defendant, and

[60 S.E. 590]

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17 practice notes
  • Marion v. Chandler, No. CC810
    • United States
    • Supreme Court of West Virginia
    • March 30, 1954
    ...123 W.Va. 161, 14 S.E.2d 436; Hyman v. Swint, 94 W.Va. 627, 119 S.E. 866; Donahue v. Rafferty, 82 W.Va. 535, 96 S.E. 935; Hanson v. Blake, 63 W.Va. 560, 60 S.E. 589; Thompson & Lively v. Mann, 53 W.Va. 432, 44 S.E. 246; Exchange Bank of Virginia v. County of Lewis, 28 W.Va. 273; Rand an......
  • Findley v. Coal & Coke Ry. Co, (No. 2702.)
    • United States
    • Supreme Court of West Virginia
    • October 12, 1915
    ...Uniform adherence to this rule is attested by numerous decisions. Mankin v. Jones, 68 W. Va. 422, 69 S. E. 981; Hanson v. Blake's Adm'r, 63 W. Va. 560, 60 S. E. 589; Clarke v. O. R. R. Co., 39 W. Va. 732, 20 S. E. 696; Kuhn v. Brown-field, 34 W. Va. 252, 12 S. E. 519, 11 L. R. A. 700; Snyde......
  • Hayes v. Town Of Cedar Grove, No. 9736.
    • United States
    • Supreme Court of West Virginia
    • March 12, 1946
    ...v. Stout, 40 W.Va. 43, 20 S.E. 852; Cox v. [National] Coal & Oil Investment Co., 61 W.Va. 291, 56 S.E. 494; Hanson v. Blake, Admr., 63 W.Va. 560, 60 S.E. 589; Demp-sey v. Poore, 75 W.Va. 107, 83 S.E. 300. See, also, 49 C.J., sections 673 and 680. In tort actions, the same rule is illust......
  • Hayes v. The Town Of Cedar Grove, (No. 9736)
    • United States
    • Supreme Court of West Virginia
    • March 12, 1946
    ...Bird v. Stout, 40 W. Va. 43, 20 S. E. 852; Cox v. Coal & Oil Investment Co., 61 W. Va. 291, 56 S. E. 494; Hanson v. Blake, Admr., 63 W. Va. 560, 60 S. E. 589; Dempsey v. Poore, 75 W. Va. 107, 83 S. E. 300. See also, 49 C. J., sections 673 and 680. In tort actions, the same rule is illus......
  • Request a trial to view additional results
17 cases
  • Marion v. Chandler, No. CC810
    • United States
    • Supreme Court of West Virginia
    • March 30, 1954
    ...123 W.Va. 161, 14 S.E.2d 436; Hyman v. Swint, 94 W.Va. 627, 119 S.E. 866; Donahue v. Rafferty, 82 W.Va. 535, 96 S.E. 935; Hanson v. Blake, 63 W.Va. 560, 60 S.E. 589; Thompson & Lively v. Mann, 53 W.Va. 432, 44 S.E. 246; Exchange Bank of Virginia v. County of Lewis, 28 W.Va. 273; Rand an......
  • Findley v. Coal & Coke Ry. Co, (No. 2702.)
    • United States
    • Supreme Court of West Virginia
    • October 12, 1915
    ...Uniform adherence to this rule is attested by numerous decisions. Mankin v. Jones, 68 W. Va. 422, 69 S. E. 981; Hanson v. Blake's Adm'r, 63 W. Va. 560, 60 S. E. 589; Clarke v. O. R. R. Co., 39 W. Va. 732, 20 S. E. 696; Kuhn v. Brown-field, 34 W. Va. 252, 12 S. E. 519, 11 L. R. A. 700; Snyde......
  • Hayes v. Town Of Cedar Grove, No. 9736.
    • United States
    • Supreme Court of West Virginia
    • March 12, 1946
    ...v. Stout, 40 W.Va. 43, 20 S.E. 852; Cox v. [National] Coal & Oil Investment Co., 61 W.Va. 291, 56 S.E. 494; Hanson v. Blake, Admr., 63 W.Va. 560, 60 S.E. 589; Demp-sey v. Poore, 75 W.Va. 107, 83 S.E. 300. See, also, 49 C.J., sections 673 and 680. In tort actions, the same rule is illust......
  • Hayes v. The Town Of Cedar Grove, (No. 9736)
    • United States
    • Supreme Court of West Virginia
    • March 12, 1946
    ...Bird v. Stout, 40 W. Va. 43, 20 S. E. 852; Cox v. Coal & Oil Investment Co., 61 W. Va. 291, 56 S. E. 494; Hanson v. Blake, Admr., 63 W. Va. 560, 60 S. E. 589; Dempsey v. Poore, 75 W. Va. 107, 83 S. E. 300. See also, 49 C. J., sections 673 and 680. In tort actions, the same rule is illus......
  • Request a trial to view additional results

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