Stoddard v. Aiken

• Decision Date: 03 April 1900
• Parties: STODDARD et al. v. AIKEN et al.
• Court: South Carolina Supreme Court

35 S.E. 501

57 S.C. 134

STODDARD et al. v. AIKEN et al.

Supreme Court of South Carolina

April 3, 1900

Appeal from common pleas circuit court of Barnwell county; J. C Klugh, Judge.

Action by John L. Stoddard, executor, and Ellen M. Hardee executrix, of the will of John L. Hardee, deceased, against Abel Aiken and others, upon a promissory note. From a judgment for defendants, plaintiffs appeal. Affirmed.

Bellinger Townsend & O'Bannon, for appellants.

James E. Davis and Bates & Simms, for respondents.

JONES J.

The complaint in the case was to recover a balance upon certain notes given by the defendant Abel Aiken to John L. Hardee. The answer, among other defenses, denied "each and every allegation in the complaint." It appears in the complaint that John L. Hardee was a resident of Georgia, and the third paragraph of the complaint, which relates to the contention before us, is as follows: "(3) That said John L. Hardee died testate on the 15th day of September, 1894 leaving in force and effect his last will and testament, by which these plaintiffs were appointed the executor and executrix thereof; and said will has been duly proved and admitted to probate in the office of the ordinary for Chatham county, in the state of Georgia, and letters testamentary issued and granted to these plaintiffs by said ordinary, and these plaintiffs have qualified and entered upon the discharge of their duties as such executor and executrix." The plaintiffs, contending that the general denial by the defendants raised no issue as to this third paragraph of the complaint, offered no evidence to sustain it. The circuit court dismissed the complaint, ruling as follows upon the question made: "The plaintiffs offered no evidence to sustain the allegations of this third paragraph of the amended complaint, and there is admitted to be an entire lack of such evidence in this case; the plaintiffs contending that no issue was presented by the pleadings as to the facts which, they argue, pertain to the plaintiffs' right or capacity to sue, and not to the cause of action. I cannot sustain this contention. These facts are material to the plaintiffs' cause of action. Unless the plaintiffs are the executor and executrix of John L. Hardee, as alleged, they have no cause of action. It was therefore necessary for them to prove the fact of their appointment. The cases cited by counsel for the plaintiffs do not go to the extent of holding that it is unnecessary to show the fact of their appointment when the allegation thereof is met by a general denial. They claim title to the chose in action by reason of their appointment. There is a distinction between their having capacity to sue, and their having a title to the chose in action by reason of their appointment. The question whether they are such executor and executrix is a question of fact, and is a distinct question from whether, as such executor and executrix, they have the capacity to sue, which is a question of law. I must therefore dismiss the complaint in this action for the reason that the plaintiffs have failed to prove they are the executor and executrix of said John L. Hardee, deceased." To this appellants excepts as follows: (1) That his honor, the presiding judge, erred in holding that, in an action by an executor and executrix on a contract made...