Henry v. State ex rel. Russell

• Decision Date: 31 January 1846
• Citation: 9 Mo. 778
• Parties: HENRY ET AL. v. STATE, TO USE OF RUSSELL, &c.
• Court: Missouri Supreme Court

9 Mo. 778

HENRY ET AL.

v.STATE, TO USE OF RUSSELL, &c.

Supreme Court of Missouri.

January Term, 1846.

ERROR TO POLK CIRCUIT COURT.

HENDRICKS, for Plaintiff. To reverse the judgment of the Circuit Court in this case, the plaintiffs here rely on the following points: 1. There is a material variance between the bond read in evidence, and the bond as described in the declaration. 1st, as to the date of it; 2nd, as to the recital that Henry had been appointed administrator; and 3rd, it was described in the declaration, as one approved by the County Court, and there was no such approval, except the certificate of one of the judges, which was no evidence of that fact. 2. The 4th plea alleges that at the time the administrator made his final settlement, and at the time the said sum of forty-nine dollars was ascertained to be J. C. Russell's distributive share of said estate, and ordered to be paid to him, he, said Russell, was and still is an infant, under the age of twenty-one years, and not in a situation to receive the same, and give a discharge therefor, and for that reason said Henry retained it, and did not pay it over to him. The replication averred that on the 9th day February, 1844, John Jump was appointed his guardian, &c. To this replication there was a demurrer, and it was overruled. We think the plea was a sufficient bar to the action under our statute. See Rev. Code, p. 61, § 14. The replication was insufficient, because it did not aver that the administrator had notice of the appointment of Jump as guardian, nor does it aver that Jump made a demand of the money due said James C. Russell, before the suit was brought, nor at any time. It is confidently believed that the administrator cannot be made liable to be sued and muleted in costs to the amount of said J. C. Russell's distributive share of said estate, until it is demanded of him by the guardian, or at least until it is shown that he knew of the appointment of said Jump as guardian. Neither of which facts being alleged in said replication, it is bad, and the Circuit Court should have sustained the demurrer to it. 3. No demand of the said distributive shares of said estate is averred either in the declaration or replication, and none being proved previous to the commencement of the suit, the court ought not to have found against the defendants below. 4. The declaration is insufficient--because it does not allege a demand before suit brought, and because the breach assigned is, not paying to J. C. Russell. The breach is insufficiently set out, as it does not negative the payment of the money, to the guardian, as well as ward. 5. The court gave judgment, and assessed damages for sixty-six dollars and forty-four cents, whereas the amount of said J. C. Russell's distributive share of said estate was forty-nine dollars. The Circuit Court allowed interest on said amount from the time of the final settlement of the administrator in the year 1839, to the time of the trial. We think there is certainly error in allowing interest against the administrator, for money which he had in his hands as administrator, ready to be paid whenever J. C. Russell became to be in a situation to receive and give discharge for it, either in person, or by guardian--no order being made by the County Court for him to retain and pay interest--at least he ought not to be chargeable with interest until he be called on for the money. To charge him with interest from the time he made his settlement in 1839, to the time Jump was appointed guardian, is to make him pay interest on the money which is in his hands. liable to be called for at any time, and which he had no means of paying over to any person, the County Court never having ordered the administrator to pay the guardian at any time. For all these reasons we expect the judgment of the Circuit Court to be reversed.

HELPS, for Defendants. The court did not err in overruling the motion in arrest. Defendants had demurred to plaintiff's replication--a judgment had been rendered on the demurrer. After judgment on demurrer, a motion in arrest cannot be made. Graham's Pr. 519; 2 Tidd, 948; 1 Strange, 425; 6 Taunt. 650. The judgment on the demurrer to the replication was for the right party, as the plea was faulty. It did not contain any averment that the County Court had ordered Henry to lend the money of the distributee. Stat. 61, § 14. The court did not err in receiving in evidence the bond. The plea of non est factum, did not require the plaintiff to prove that the bond had been approved by the County Court. The bond was valid. 6 Mo. R. 81. The declaration contained all the necessary averments for the plaintiff to maintain the action. 4 Mo. R. 426. The orders of the County Court, making distribution, and directing the administrator to pay to the heirs their respective shares, amounted to a judgment. The court did not...