Kitson v. Messenger.
| Decision Date | 05 October 1943 |
| Docket Number | (No. 9459) |
| Citation | 126 W.Va. 60 |
| Court | West Virginia Supreme Court |
| Parties | Mary Elizabeth Kitson, Admx., etc. v. A. E.Messenger et al. |
1. Judgment
A notice of motion for judgment serves as the summons and declaration in the action, and defects appearing on the face thereof may be taken advantage of either by motion to quash or by demurrer; and a motion to quash will be treated as a demurrer.
2. Executors and Administrators
Where the administratrix of the estate of a decedent institutes, in her name as such administratrix, a notice of motion for judgment proceeding to collect an obligation due her intestate; a notice of motion served on the defendant, which fails to allege her appointment and qualification as such administratrix, furnishes no basis for any judgment in the action in her favor; and such defect, unless waived by a general appearance thereto without objection, may be taken advantage of by motion to quash or by demurrer.
3. Abatement and Revival
Where an administratrix of the estate of a decedent institutes a suit or action in her name, as such, to collect an obligation due her intestate, and during the pendency of the suit or action dies; an order substituting as plaintiff therein the administratrix of the personal representative is void. In such case the suit or action may only be revived in the name of the administrator de bonis non of the first intestate, for the benefit of whose estate the suit or action was instituted in the first instance.
Error to Circuit Court, Gilmer County.
Proceeding by Opie W. Kitson, as administratrix of the estate of Hortense Woofter, deceased, against A. E. Messenger and another by notice of motion for judgment on notes. Plaintiff died during the pendency of the ac- tion, and Mary Elizabeth Kitson, as administratrix, was substituted as plaintiff. To review a judgment for plaintiff, defendant B. S. Messenger brings error.
Reversed and remanded.
Wm. T. George, William George, Jr., Hamon Boggs and G. C. Belknap, for plaintiff in error.
Paul H. Kidd and B. W. Craddock, for defendants in error.
On October 14, 1925, A. E. Messenger and B. S. Messenger executed their two notes, each for the sum of $189.55, payable, respectively, in four and eight months thereafter, with interest, to Hortense Woofter. In September, 1933, a notice of motion proceeding was instituted in the Circuit Court of Gilmer County, against the makers of said notes, returnable on October 17, 1933, to obtain judgment thereon. This notice was signed by Opie W. Kitson, administratrix of the estate of Hortense Woofter, deceased, but did not contain an allegation of the appointment and qualification of the administratrix. The notice was served on B. S. Messenger on September 19, 1933, and was returned not executed as to A. E. Messenger. On October 24, 1933, B. S. Messenger appeared by his attorney, and moved the court to quash the notice, and according to the order entered assigned grounds for said motion in writing. The assignment of grounds for the motion to quash does not appear in the record, but it is now argued that the court would be warranted in assuming that the grounds therefor were that the notice did not allege the appointment and qualification of the administratrix who assumes to institute the action. On the same date B. S. Messenger entered a plea of the general issue. But for his motion to quash, the filing of the general issue plea would have amounted to an admission of the right of the plaintiff to sue in the capacity she did. McDonald v. Cole, 46 W. Va. 186, 32 S. E. 1033. Approved in Austin v. Calloway hereinafter cited. He also filed a special plea in which he averred that, after the maturity of the notes set out in the notice of motion, he gave notice in writing to the attorney and agent of the holder of said notes, to sue upon said notes, and that said notice had been given more than three years prior to the proceeding instituted to collect the notes mentioned therein. There is filed with the record, as exhibits, copies of the two notes, and a purported copy of the letter to the attorney mentioned in the plea, which letter appears to have been dated June 6, 1930. Much later, on October 22, 1942, and after there had been an attempted substitution of another plaintiff, there was a demurrer to this special plea which the court sustained, the plea stricken, and exceptions to such action taken by the party tendering the plea. On February 10, 1937, an order was entered in the case dismissing the same, on the ground that no order had been entered therein within two years; but said dismissal was made subject to the right of the parties to have the case reinstated for good cause, as provided by statute. On February 25, 1938, plaintiff appeared and moved the court to reinstate the case, which was done, the court holding that good and sufficient reasons for such action had been shown, and further stating that the plaintiff had paid to the clerk of the court the sum of thirteen dollars covering the clerk's costs of five dollars and the jury fee of eight dollars, and the case was then continued until the next term of the court. On January 28, 1941, plaintiff gave notice to B. S. Messenger that the trial of the case would be demanded at the next succeeding term of the circuit court. No trial was had at that term, and nothing was done in the case until October 22, 1941, when the following order was entered: "This day came B. W. Craddock, attorney for the plaintiff, and suggested the death of Opie W. Kitson; and moved the court to substitute Mary Elizabeth Kitson, administratrix of the estate of Opie W. Kitson, deceased, as plaintiff; and there being no objection to such motion, it is ordered that this cause proceed in the name of Mary Elizabeth Kitson, administratrix of the estate of Opie W. Kitson, deceased, who was plaintiff herein, as administratrix of the estate of Hortense Woofter, deceased, plaintiff, against B. S. Messenger, defendant, upon notice of motion to recover money."
On October 22, 1942, B. S. Messenger appeared by his counsel, and moved the court to set aside the order of February 25, 1938, reinstating the cause, on the ground that plaintiff had not complied with the provisions of the statute in respect to the payment of costs, which motion was overruled. He also moved the court to dismiss the case on the grounds that the notice in writing required by statute in respect to the trial of the case was not given until January 28, 1941, and that no order had been entered in the case from February 25, 1938, until October 22, 1941, which motion was likewise overruled. Then it was that plaintiff demurred to the special plea as hereinabove noted. Following these actions of the court, all matters of law and fact were submitted to the court in lieu of a jury, whereupon the court found for the plaintiff and entered judgment in her favor against B. S. Messenger for the sum of $770.31 and costs accruing since February 25, 1938. Objections were made and exceptions taken to the several actions of the court, and, on petition of the defendant Messenger, we awarded this writ of error. The errors assigned covered the various actions of the court to which objections were made and exceptions taken.
It is assigned as error that the court should not have reinstated the case on the docket on February 25, 1938, without requiring the payment of all costs to that date, and that it was error to overrule the motion made to set aside such reinstatement order. We do not think this assignment has any merit. In the absence of a showing to the contrary, it may be safely assumed, we think, that the costs, which the court certified had been paid, were all the costs incurred by the plaintiff to that date.
Another assignment is that it was error to overrule the motion to dismiss the case, because no notice in writing had been given to the intention of the plaintiff to try the case until January 28, 1941. We see no error in this ruling for the reason that matters connected with the trial...
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