Martin v. Fowler
| Decision Date | 22 November 1897 |
| Citation | 28 S.E. 312,51 S.C. 164 |
| Parties | MARTIN et al. v. FOWLER. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Spartanburg county.
Action by E. Martin and another, administrators of the estate of Othello Martin, deceased, against James Fowler. From a judgment for plaintiffs, defendant appealed. Defendant moves for an order suspending the hearing of the appeal. Denied.
Carlisle & Hydrick, for the motion.
This was a motion--"First, for an order suspending the hearing of the appeal herein, and giving the defendant (appellant) leave to move the court of common pleas for Spartanburg county for an order vacating and setting aside the judgment herein appealed for [from?], and for a new trial, with leave to defendant to amend his answer by withdrawing his admission of the fourth paragraph of the complaint, and denying the same, on the ground that the plaintiffs, E. & R. M. Martin, were not the duly-appointed administrators of the estate of Othello Martin, deceased, and that no administration of his estate has ever been granted to any one; second, for such other relief as may be just and proper." This motion is based upon the following affidavits: (1) That of Charles J. Fowler, to the effect that said Othello Martin died about the year 1892, and that at the time of his death, and for many years prior thereto, he was a citizen and resident of the county of Spartanburg. (2) That of J. J. Gentry, to the effect that he is now judge of probate of the county of Spartanburg; and that, after diligent search of the records of his office, he is unable to find any evidence tending to show that E. & R. M. Martin, or either of them, or any other person, have ever been appointed administrators of the estate of Othello Martin, deceased, or that they or either of them ever qualified or gave bond as such. (3) That of D. E. Hydrick, to the effect that he is one of the counsel retained to defend the action in this case and, as such, has conducted the defense from the time his firm was first employed; that when he filed the answer of the defendant, in which it is admitted that the plaintiffs were the duly-appointed administrators of the estate of Othello Martin, deceased, he verily believed it to be true, the ground of his belief being the allegation of the fact in the complaint; that he did not discover that such allegation was not true until about a week or ten days before making this affidavit, to wit, 3d June, 1897, when he made the discovery by examining the office of judge of probate for the purpose of obtaining facts which he deemed proper to incorporate in the "case" which he was then preparing for the purpose of this appeal. (4) That of John W. Carlisle, Esq. to the effect that he thought plaintiffs were the duly-appointed administrators of the estate of Othello Martin, deceased, until recently informed to the contrary by his partner, M. Hydrick. An affidavit of W. S. Thomason Esq., one of the counsel for respondents, was also submitted in his behalf, to the effect that he was judge of probate of the county of Spartanburg from January, 1887, to December, 1895; that on or about the ___ day of February, 1892, "as deponent distinctly remembers," plaintiffs filed their petition in his court for letters of administration upon the estate of their father, Othello Martin; that a citation was duly published in the county newspaper; and that, on or about the day named therein, the plaintiffs appeared in person before the court; that no objection whatever was made to their being appointed; and deponent distinctly remembers swearing "both of the plaintiffs in as administrators of their father's estate," in which capacity they have been acting ever since; deponent also thinks that he issued to plaintiffs a certificate of their appointment and qualification, but as to this he is not absolutely certain; that, deponent not being quite satisfied with the bond which plaintiffs then furnished, he returned it to them, to get other security thereon; that the reason why no record of the appointment appears among the records of the court is because this matter was delayed until the plaintiffs should return their bond to the court, which was not done until the 3d day June, 1897, which said bond is annexed to the affidavit, and appears to be a bond in the sum of $1,000, in the usual form, signed by E. Martin, R. M. Martin, S. F. Martin, and A. M. Wood, in the presence of two subscribing witnesses, and bears date 3d March, 1892. The whole record in this case is not before us, but we assume from what appears in the motion papers that the action was brought to foreclose a mortgage given to secure the payment of a note made payable to the alleged intestate in his lifetime, and that it was distinctly alleged in the complaint, and formally admitted in the answer, that letters of administration of the personal estate of such intestate had been duly granted to the plaintiffs. What issues were raised in the pleadings we are not informed, though it does appear that the plaintiffs recovered judgment, from which defendant has appealed, but upon what grounds does not appear. Inasmuch as the defendant admitted on the record the right of plaintiffs to sue in their representative capacity, we must assume that the right of plaintiffs to sue in their representative capacity was not, and could not have been, put in issue in the court below; and certainly no such issue could be raised by the appeal. So that the practical inquiry is whether the defendant, by this motion, can be permitted to raise the issue of plaintiffs' right to sue in their representative capacity, which he neglected to raise at the proper time and in the proper way.
As far back as the case of Reynolds v. Torrance, 2 Brev. 59, it was held that, if the defendant desires to raise the issue of plaintiff's right to sue in a representative capacity, he must do so by his pleading, and, if he omits to do so, he is estopped from afterwards raising such issue. Brevard, J., in delivering the opinion of the court, uses this significant language, which is so pertinent to our present inquiry that we quote it: "But if the defendant omits to plead that the plaintiff never was executor, and pleads over to the action, he admits the right of the plaintiff to sue in the character he assumes, and is afterwards estopped to deny that he is executor." Now, if this be true when the defendant impliedly admits the plaintiff's representative character by omitting to deny the same, and pleading over to the action,--in that case by pleading the general issue,--how much more true is it in this case, where the defendant has expressly admitted on the record plaintiffs' right to sue in their representative character. It is also important to note that in Reynolds v. Torrance the plaintiff, upon the demand of counsel for defendant, "produced a certificate of the clerk of a county court in Virginia, stating that the plaintiff had qualified as executor of Reynolds, and had proved the will," when objection was made that this did not authorize the plaintiff to sue in the courts of this state. The court, in speaking of this matter, said that, while the objection was tenable, yet the defendant had no right to demand the letters testamentary under the issue joined by the parties, and, though the plaintiff did produce them, yet this, being foreign to the issue, made no difference in the case, as the character of the letters testamentary unnecessarily produced was immaterial. Now, if the defendant in that case was not allowed to avail himself of the objection that the plaintiff had no right to maintain the action in his representative character, where the fact appeared that the letters testamentary produced by himself were not sufficient to authorize him to maintain an action in the courts of this state, because the defendant had, by his pleading, impliedly admitted the plaintiff's right to sue, and had thereby estopped himself from denying the same, how much stronger is the present case, where the defendant has expressly admitted plaintiff's right to sue in a representative capacity, and the fact has not been made to appear that the plaintiffs are not administrators, and, on the contrary, it is alleged by affidavit that they are. The case of Reynolds v. Torrance has been recognized in Kelly v. Thomson, 2 Brev. 58; in Smith v. Mitchell, 2 Nott & McC. 64; in Brockington v. Vereen, 1 Bailey, 447. See, also, to same effect, Warner v. Condy, 4 McCord, 344, and Hutchinson v. Bobo, 1 Bailey, 546. The case of Smith v. Mitchell, supra, also shows that after defendant has pleaded the general issue, and thereby admitted the plaintiff's right to sue in a representative capacity, the defendant cannot, even in the court below, be permitted to raise an issue as to the representative character of the plaintiff, by putting in another plea denying that he was administrator. To the same effect is Warner v. Condy, supra.
These authorities are conclusive of the matter, unless the law thus long and well settled has been altered by the Code. The only two sections of the Code which can be supposed to affect this question are sections 194 and 195. In the former it is declared: "The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper amend any pleading, process, or proceeding by adding or striking out the name of any party; or by correcting a mistake in the name of a party, or a mistake in the name of a party, or a mistake in any other respect; or by inserting other allegations material to the case; or when the amendment does not change substantially the claim or defense, by conforming the pleadings or proceeding to the facts proved." But this court has held that the object of this section was...
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