Ross v. Alleman

• Decision Date: 31 May 1875
• Citation: 60 Mo. 269
• Parties: JESSE D. ROSS, ADMINISTRATOR OF J. T. ROSS, DEC'D, Appellant, v. WILLIAM H. ALLEMAN, Respondent.
• Court: Missouri Supreme Court

60 Mo. 269

JESSE D. ROSS, ADMINISTRATOR OF J. T. ROSS, DEC'D, Appellant,

v.WILLIAM H. ALLEMAN, Respondent.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Caldwell Circuit Court.

Dunn & Johnson, for Appellant.

In suits brought by an executor or administrator upon contracts made with the testator or intestate in his lifetime, if he fails to recover he is not liable de bonis propriis. (Wooldridge vs. Draper, 15 Mo., 470; Laughlin vs. McDonald, 1 Mo., 684; Ranney, Adm'r, vs. Thomas, 45 Mo., 111; State vs. Maulsby, 53 Mo., 500; Finney vs. State, 9 Mo. 225.)J. M. Hoskinson, for Respondent.

I. The matter of costs, in a case like this, is left pretty much to the discretion of the trial court.

WAGNER, Judge, delivered the opinion of the court.

Plaintiff, as administrator, commenced this action in the Circuit Court, on a demand which accrued to his intestate in his lifetime.

A motion was filed to compel him to give security for costs, on the ground that he was unable to pay the costs, and that the estate which he represented, and for which he sued, was insolvent. Without hearing any evidence on this motion the court sustained it, and the plaintiff refusing to give security, the suit was dismissed and a personal judgment was rendered against him.

The judgment is erroneous. The cause of action accrued to the plaintiff's intestate in his lifetime, and in such a case the plaintiff, as administrator, was not personally liable for costs. The judgment should have been against him in his representative capacity, to be satisfied out of the assets of the estate. (Wooldridge vs. McDonald, 15 Mo., 470; Ranney vs. Thomas, 45 Mo., 111; State, to use, &c., vs. Maulsby, 53 Mo., 500.)

As a general rule administrators prosecuting actions in their representative characters, are not required to give bonds for costs or appeals, for the reason that they have already given bonds, with approved security, to answer for all damages or liabilities touching their acts as such. If their bonds are insufficient, the proper mode is to move, in the Probate Court, to have them made good.

The judgment should be reversed and the cause remanded; all the other judges concurring.