Langsdale v. Woollen

• Decision Date: 28 May 1889
• Docket Number: 9473
• Parties: Langsdale v. Woollen, Administrator
• Court: Indiana Supreme Court

21 N.E. 541

120 Ind. 78

Langsdale v. Woollen, Administrator

No. 9473

Supreme Court of Indiana

May 28, 1889

Petition for a Rehearing Overruled Sept. 24, 1889.

From the Marion Circuit Court.

Judgment affirmed, with costs.

J. A New, J. W. Jones, A. C. Ayres, E. A. Brown, J. M. Winters, R Denny and J. R. McFee, for appellant.

W. W. Woollen, Jr., for appellee.

Berkshire, J. Elliott, C. J., took no part in the decision of this case.

OPINION

Berkshire, J.

This was an action in the court below, instituted by the appellant against the appellee to annul the letters of administration issued to the latter, and to remove him from his trust.

The complaint contains two paragraphs, to which separate demurrers were filed and sustained by the court, and the proper exceptions reserved. Judgment was rendered for want of a sufficient complaint, and from that judgment the appellant appeals, assigning as error the ruling of the court below in sustaining the demurrers to the paragraphs of the complaint.

There is not a great deal of difference in the two paragraphs of complaint. The first paragraph alleges that John Crowder, the decedent, departed this life intestate, in the year 1854, in the Dominion of Canada, and the appointment in a reasonable time thereafter of an administrator at the place of his death; that he had no estate of any character or kind in the county of Marion, or State of Indiana, on the 28th day of September, 1855, to be administered, but, notwithstanding, on that day one George W. Mears was appointed administrator of said estate by the court of common pleas for Marion county, State of Indiana, and continued in that capacity until the year 1858, when his resignation was accepted by the court; that in the same year, there being no assets of said decedent in the county of Marion, or in the State of Indiana, at the time of said Mears' appointment, and none having come into the State afterwards, or if so the same were fully administered by said Mears; by the same court one Alexander Graydon was appointed administrator de bonis non of said estate, and continued as such until the 13th day of March, 1863, at which time he reported to the court that he had made search for property and could find nothing, and asked to be discharged; that his report was approved, and he was finally discharged from his trust, and the said estate discontinued; that on the 27th day of March, 1874, there never having come into the county of Marion, or State of Indiana, any assets or property of said decedent, and if so the same having been fully administered, on his own application the appellee was appointed, by the probate court, administrator de bonis non of said estate; that during the administration of said Mears and said Graydon, respectively, a suit was instituted against the appellant to recover a balance claimed to be due arising out of the sale and purchase of a certain farm, but that such proceedings were afterwards had that the said suit was, by the said administrator, dismissed, and no further steps taken by them; that when said appellee was appointed as such administrator said estate had been fully settled and discontinued, and that said court in making said appointment acted without its jurisdiction.

The only difference in the two paragraphs of the complaint is that in the second paragraph there is the additional averment that in the action brought by the appellee against the appellant a judgment was recovered on the -- day of January, 1881, for the sum of $ 2,032.52. One of the elementary rules of pleading is, that the averments in a pleading must be clear and unequivocal. Bunnell v. Davisson, 85 Ind. 557.

"The pleader is not at liberty to leave his pleading open to different constructions, and then take his choice between them." Van Etten v. Hurst, 6 Hill 311 (41 Am. Dec. 748); United States v. Linn, 42 U.S. 104, 1 HOW 104, 11 L.Ed. 64; Atwood v. Caswell, 19 Pick. 493.

Facts must be stated directly and positively, and not indirectly nor in the alternative. Stonsel v. Abrams, 7 Blackf. 516; Stone v. Graves, 8 Mo. 148 (40 Am. Dec. 131); Thompson v. Munger, 15 Tex. 523 (65 Am. Dec. 176).

Neither paragraph avers in positive terms that there were no assets belonging to the estate within Marion county when the several administrators were appointed. Taking the averments altogether, they neither deny nor affirm that there were assets, but allege that if there were any they had been fully administered before the appellee received his appointment.

It is averred that after the appellee had been appointed he brought an action against the appellant upon the same alleged cause of action upon which Mears and Graydon had sued him while they were acting as administrators, and in the first paragraph it is alleged that the action is still pending; in the second paragraph it is alleged that the action had been prosecuted successfully, and a judgment rendered for $ 2,032.52, and though, as a conclusion of the pleader, it is alleged that the estate had been...