Masonic Benefit Ass'n v. Simmons

• Decision Date: 17 July 1905
• Citation: 38 So. 791,86 Miss. 470
• Court: Mississippi Supreme Court
• Parties: MASONIC BENEFIT ASSOCIATION v. PETER SIMMONS, ADMINISTRATOR

38 So. 791

86 Miss. 470

MASONIC BENEFIT ASSOCIATION v. PETER SIMMONS, ADMINISTRATOR

Supreme Court of Mississippi

July 17, 1905

FROM the chancery court of, first district, Hinds county, GARLAND G. LYELL, ESQ., Special Chancellor.

Simmons administrator, the appellee, was complainant, and the benefit association, the appellant, was defendant in the court below. From a decree in complainant's favor the defendant appealed to the supreme court. The facts are fully stated in the opinion of the court.

Reversed and remanded.

Robert Lowry, for appellant.

Code 1892, § 1797, has no application to the case at bar. The appellant, by the usual process, was brought into the chancery court of Hinds county to answer an alleged indebtedness by Peter Simmons, administrator of the estate of Robert Wells, deceased. Simmons was appointed administrator one year after the death of the decedent, and five months after the appointment of W. C. George, administrator, by the chancery court of Leflore county. Appellant was not required to deny under oath that Simmons was not administrator of Wells, deceased. In other words, it is not required that litigants should swear what the law is on the subject. Appellant appeared and, answering the alleged indebtedness stated that W. C. George was the administrator, and that appellant had paid the $ 500 to George as administrator of the estate of the deceased, and asked leave of court to file a certified copy of the appointment of George and also a receipt from George's attorneys that the money had been paid, and now, for them, by leave of court, files the original check given for the payment of the $ 500. The answer was sworn to by the secretary and treasurer of appellant.

Watkins & Watkins, for appellee.

It will be perceived that, in this case, Peter Simmons administrator, sues in his representative, or artificial, character; and if his character, as such, would be attacked, the provision of section 1797 of the code should be complied with, which provides, in substance, that unless the representative character in which a party sues is specially denied by plea verified under oath, then the party so suing shall never be called upon to prove the same.

And this court, in the case of Woolen Mills v. Rollins, 75 Miss. 253, held that the waiver of an answer under oath does not affect the requirements of this section; and the court further decided it necessary in chancery courts that the representative capacity of the complainant, where he sues in such capacity, shall be denied under oath; or, if not denied, his representative capacity is admitted.

In the case of Reed v. Railroad, 4 How. (Miss.), 262--this was a case in which a corporation sued in its corporate capacity upon a note, and the defendant pleaded non assumpsit--the court, in delivering the opinion, uses the following language: "Whatever the rule of law might have been, we must now regard the question as settled, that all pleas to the action shall be deemed and judged as admitting the parties and the character of the parties suing."

The decision of the court in this case was that the artificial character of the plaintiff, not having been denied under oath, was expressly admitted. Vicksburg Waterworks Co. v. Washington, 1 Smed. & M., 536; Hemphill v. Bank of Alabama, 6 Smed & M., 48; Moore v. Anderson, 3 Smed. & M., 324; Beard v. Griffin, 10 Smed. & M., 589; Anderson v. Leyton, 46 Miss. 295; Moore v. Knox, 46 Miss. 602; Railroad Company v. Anderson, 51 Miss. 830; Thompson v. First National Bank, 84 Miss. 821 (s.c., 37 So. 635).

Code 1892, § 534, provides that the answer of a corporation need not be under seal, but shall be sworn to by its president, general manager or superintendent, or other general officer. Now, even if this answer amounts to a denial, or even amounts to a special denial, as provided by the statute, of the complainant's representative character, was it properly sworn to? The statute requires that an answer for a corporation, when necessary to be sworn to, shall be verified by certain persons named therein; and unless so verified, the answer availeth nothing. In other words, the affidavit, on its face, should have stated that the person making the affidavit on behalf of said corporation was some person falling within the requirements of the provisions of the statute.

In 2 Ency. of Law & Proc., 23, the law is stated to be as follows:

"Except in cases where the affiant is acting in some special capacity, the omission from the body of the instrument of his name and description is not material, provided the affidavit be signed by him; but where his affidavit is required to be made by a person acting in a certain capacity, the name of the affiant and the capacity in which he acts should be stated." See the case of Steinbach v. Leese, 27 Cal. 295; State v. Washo County, 5 Nevada, 317.

Argued orally by Robt. Lowry, for appellant, and by W. H. Watkins, for appellee.

OPINION

HOUSTON, J.

A bill was filed by Peter Simmons, as administrator of the estate of Robert Wells, deceased, and by Mary Lewis and said Peter Simmons, as individuals and as two of decedent's heirs against appellant (a Mississippi corporation), alleging that said decedent, at the time of his death, February 27, 1903, held a certificate in said association, payable to the estate of said Wells; that on March 7, 1904, said Simmons was appointed administrator of same, as shown by exhibit "A," copy of his appointment; that during his life he complied with every regulation required by said association--paying all dues, assessments, etc.; that said certificate has been surrendered to said association, with proper proof of death, and all requirements of the laws complied with, entitling the said estate to be paid the amount of said certificate, but that the officers of said association refuse to pay the same to complainants; that, if mistaken in...