Hanson v. Blake, Adm'r.

• Decision Date: 18 February 1908
• Citation: 63 W.Va. 560
• Court: West Virginia Supreme Court
• Parties: Hanson v. Blake, Adm'r.

63 W.Va. 560

Hanson

v.Blake, Adm'r.

Supreme Court of Appeals of West Virginia.

Submitted January 14, 1908.

Decided February 18, 1908.

1. Pleading Declaration Description of Defendant.

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, (p. 562.)

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," &c, following defendant's name, are descriptive only of the person of defendant, and the action cannot be considered as against him in representative capacity, (p. 562.)

?,. 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, (p. 562.)

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, (p. 562.)

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. (p. 563, 565.)

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, Judge:

Plaintiff instituted this action of assumpsit against defendant, styling him in the summons 4' administrator of Charles Lomadew, deceased." The declaration contains only the common counts, and the allegations thereinOare directly against defendant, after whose name in the beginning are the words aforesaid. There are no allegations that plaintiff's decedent was indebted or promised, but that defendant was indebted and promised. The affidavit hied 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," &c. 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 j)ermitting 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, chapter 125. section 29; Koontz v. Koontz, 47 W. Va. 31. 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 not of the character or capacity in which he is sued, since the averments of the declaration are not against him in such representative capacity. No promise or undertaking of decedent is averred, for which it is sought to hold defendant as his personal representative liable out of property in his hands to be administered. Whether such words as follow the name of defendant are to be deemed descriptive of his person or of the character and capacity in which he is sued, is to be determined by the allegations of the declaration. The averments of the declaration being, in fact, against defendant personally, these words must be held to be only descriptive of his person, and may be rejected as surplusage. Were the declaration against the estate which defendant represents, and the promises declared upon those of the person he represents, then such words would be properly used as necessary to set forth the representative capacity in which defendant is sued. Rich v. Sowles, 64 Vt. 408; Austin v. Munro, 47 N. Y. 360; State v. Hudkins, 34 W. Va. 372.

These words being so used as to be simply descriptive of the person of defendant, the judgment is a personal one against him. Thompson de Lively v. Mann, 53 W. Va. 435. Then, too, it is not sustained by the proof. We make no suggestion as to the weight of the evidence in its relation to a claim against the estate of decedent, but simply say that this evidence, wholly relative to such claim, was not admissible, because the action is so declared upon as to be personal to defendant. While the judgment may be said to be consistent with the writ and declaration, yet the proof related to no such claim as alleged, and cannot support such judgment. There is direct variance between the allegations and proof. This is fatal. Berkley v. Cook, 3 Call 378; B. de O. R. Go. v. Skeels, 3 W. Va. 556; Loomis v. Jackson, 6 W. Va. 613; Dresser v. Tramp. Co., 8 W. Va. 553; James v. Adams, 8 W. Va. 568; and other cases. Such being the case, either of the motions, to exclude, to set aside the verdict, or in arrest of judgment, should have been granted.

Taking the case as a whole, it is plainly to be seen that it was intended for recovery upon implied, if not express, promises of Charles Lohmedieu, in his lifetime, to plaintiff, for board and maintenance. But as we have observed, in this the pleader signally failed; and, while...