McIntire v. Torrance
| Decision Date | 25 April 1939 |
| Docket Number | 28775. |
| Citation | 90 P.2d 17,185 Okla. 19,1939 OK 226 |
| Parties | McINTIRE v. TORRANCE et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. A copy of letters of administration granted in a court of another state when attested by the clerk of said court with the seal of the court annexed and certificate of the judge of said court as required by 28 U.S.C.A. § 687, is admissible in evidence in the courts of this state in a suit prosecuted by the administratrix named in the letters of administration.
2. "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 correcting 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 conform the pleading or proceeding to the facts proved, when such amendment does not change substantially the claim or defense and when any proceeding fails to conform, in any respect, to the provisions of this code, the court may permit the same to be made conformable thereto by amendment." Sec. 251 Okla.Stats.1931, 12 Okl.St.Ann. § 317.
3. Under the foregoing section of our statutes allowing amendments in the discretion of the court, it is not reversible error for the trial court to permit the substitution of a new plaintiff when the first named plaintiff is incompetent or improper.
Appeal from District Court, McClain County; Tom P. Pace, Judge.
Action by Belle J. Torrance, administratrix of the estate of John M Torrance, deceased, against J. A. McIntire, Frank Adkins, and others, to recover on a note and to foreclose a mortgage on realty. From an adverse judgment, J. A. McIntire appeals.
Judgment affirmed.
Williams, Cowan & Benedum, of Norman, for plaintiff in error.
James H. Chambers, of Wichita, Kan., and J. L. Abernathy, Jr., of Purcell, for defendants in error.
On March 19, 1937 Belle Torrance, Margaret Torrance, Katherine Torrance and William H. Torrance as heirs of J. M. Torrance, deceased, filed suit against J. A. McIntire, the plaintiff in error, Frank Adkins, and others, to recover on a promissory note and to foreclose a mortgage on real estate which note and mortgage were executed by the defendant Frank Adkins to the Everest-Porter Mortgage Company and subsequently assigned to plaintiff's decedent.
Following an adverse ruling on his demurrer to the petition the defendant McIntire answered denying generally the allegations in the petition and asserting further the incapacity of the plaintiffs to maintain their action for the reason that plaintiffs were residents of the state of Illinois and under the laws of that state such action could be maintained only by the legal representative of the estate of J. M. Torrance, deceased.
Thereafter, on application of the plaintiffs, the court made Belle J. Torrance, administratrix of the estate of J. M. Torrance, deceased, (under appointment of the County Court of Warren County, Illinois) an additional party plaintiff. The administratrix was the same person as Belle Torrance one of the original plaintiffs in the action. The cause was tried to the court on the amended petition of the plaintiffs (under what amounted to a substitution of the administratrix as plaintiff) and the amended answer to the defendant McIntire. The court overruled McIntire's demurrer to plaintiff's evidence and, upon failure of proof by any defendant in the action in support of the allegations in their pleading, judgment was rendered in favor of the substituted plaintiff.
The defendant J. A. McIntire challenges the judgment upon two grounds; first, that the judgment is ineffectual for the reason that it was rendered in favor of the administratrix to the exclusion of the original parties plaintiff; and, second, that the court erred in admitting in evidence copies of the letters of administration in the estate of J. M. Torrance, deceased, inasmuch as no ancillary proceedings were shown authorizing the administratrix to maintain the suit.
The certified copy of the letters of administration in the estate of J. M. Torrance, deceased, introduced in evidence, shows the appointment of Belle J. Torrance as administratrix to have been made on September 9, 1937 by John Hillen, Clerk of the County Court of Warren County, Illinois, by Lorene Glenn Deputy. The appointment conforms to the provisions of Section 23, Chapter 25, Illinois Rev.St.1929. Attached to and made a part of the copy of the appointment is a certificate executed by John Hillen, Clerk of the court. The clerk's...
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