Ralston v. Moore

• Citation: 4 N.E. 673,105 Ind. 243
• Decision Date: 28 January 1886
• Docket Number: 12,389
• Parties: Ralston v. Moore
• Court: Supreme Court of Indiana

4 N.E. 673

105 Ind. 243

Ralston v. Moore

No. 12,389

Supreme Court of Indiana

January 28, 1886

From the Marion Superior Court.

The judgment is affirmed, with costs.

I Klingensmith and W. P. Adkinson, for appellant.

P. W Bartholomew, for appellee.

OPINION

Mitchell, J.

This was a suit on a joint and several promissory note, dated January 13th, 1875, payable to Isaac Moore, due one day after date, and signed "J. & D. A. Ralston." The action was originally brought against David A. Ralston and J Ralston. Before the issues were completed it was dismissed as to the latter.

David A. Ralston pleaded in abatement, in effect that during the years 1872 and 1873 he and one John Ralston were partners, under the firm name of "J. & D. A. Ralston," and that the note was given by them jointly; that afterwards the defendant withdrew from the firm, leaving in the hands of John Ralston, the continuing member of the late firm, ample means to pay all the partnership debts, including the note sued on, and that the consideration of the note was received principally by John Ralston, who, it is averred, died in Owen county on the 21st day of April, 1882. The answer alleges that the administration of the estate of John Ralston, deceased, is still pending in Owen county, and that there are ample means belonging to the estate with which to pay all the debts, including the note, which it is averred has never been presented to the administrator or filed against the estate. Because this has not been done, and for the reason that the administrator is not made a party, it is alleged, the superior court has no jurisdiction, and the prayer is that the action may abate.

A demurrer was sustained to this plea, and it is now claimed that by force of the statute regulating the manner of enforcing claims against executors and administrators, this ruling was erroneous.

The statute referred to, section 2311, R. S. 1881, provides, in effect, that no action shall be brought by complaint and summons against any executor or administrator, upon any contract, etc., but the holder of such contract shall enforce it against the estate only by filing his claim in the manner provided in the preceding section.

It is also claimed by counsel that section 2312, R. S. 1881, exerts some influence favorable to his view. This section enacts that every contract executed jointly by a decedent, with any other person, shall be deemed joint and several, for the purposes contemplated in the section above referred to, and the amount due on such contract shall be allowed against the estate of the decedent, as if the contract were joint and several.

If this suit had been against the personal representative of the deceased partner, and the plea in abatement had been filed on his behalf, the application of the statutes referred to might be apparent. As, however, the action was against the survivor, we think the statutes relied on have no application whatever to the case.

Upon the death of one of two joint debtors, the creditor has a right to collect his claim at law from the survivor, or, at his option, proceed as the statute points out, against the estate of the deceased. Kimball v. Whitney, 15 Ind. 280.

That assets of the firm, sufficient to pay the debts, were left in the hands of the deceased partner at the time the partnership was dissolved, was immaterial. The defendant remained liable until the debt was paid. The plea in abatement was clearly insufficient.

After the demurrer to the plea in abatement was sustained, the defendant filed an answer in four paragraphs, the first of which was a general denial, and the second an unverified plea of non est factum. Sustaining a demurrer to the second plea is complained of as error.

While it is true,...