Toner v. Wagner

• Decision Date: 01 May 1902
• Docket Number: 19,812
• Citation: 63 N.E. 859,158 Ind. 447
• Parties: Toner et al. v. Wagner, Administrator
• Court: Indiana Supreme Court

63 N.E. 859

158 Ind. 447

Toner et al. v. Wagner, Administrator

No. 19,812

Supreme Court of Indiana

May 1, 1902

From Marshall Circuit Court; C. P. Drummond, Special Judge.

Action on note by Frank L. Wagner, administrator of the estate of Jane Brunk, deceased, against Edward Toner and another. From a judgment for plaintiff, defendants appeal. Transferred from the Appellate Court, under § 1337u Burns 1901.

Affirmed.

I Conner, J. Rowley, C. Kellison and J. G. Williams, for appellants.

E Myers, G. W. Holman and R. C. Stephenson, for appellee.

OPINION

Dowling, J.

The appellee, as administrator of the estate of Jane Brunk deceased, sued the appellants Edward Toner and Albert D. Toner, Sr., upon a promissory note for $ 1,998.88, dated October 10, 1887, and payable one year thereafter to the said Jane Brunk. The action was brought in the Fulton Circuit Court, and the venue was subsequently changed to Marshall county. A demurrer to the complaint was overruled, and an answer filed consisting of a plea of payment and a general denial. A reply in denial of the answer of payment was filed. The cause was tried by the court, and a finding made in favor of the appellee, and, over a motion for a new trial, judgment was rendered on the finding. The rulings of the court on the demurrer and on the motion for a new trial are assigned for error.

The objections taken by appellants to the complaint were that it did not aver that Jane Brunk was dead, nor that the appellee was the administrator of her estate. Counsel for appellants say that the words, "administrator of the estate of Jane Brunk, deceased," in the title of the cause and in the body of the complaint, are merely descriptio personae, and are not equivalent to an allegation that letters of administration upon the estate of the said Jane Brunk were issued to the said Wagner.

The ground of appellants' demurrer was that the complaint did not state facts sufficient to constitute a cause of action. The appellee insists that, where this cause is assigned, the objection that the complaint does not show that the plaintiff sues in a representative capacity is not available, and that, to raise the question discussed by counsel for appellants, the demurrer should have challenged the legal capacity of the plaintiff to sue. §§ 342, 2447 Burns 1901; Nolte v. Libbert, 34 Ind. 163; Hansford v. VanAuken, 79 Ind. 157, 160.

But the point made against the complaint is not that the plaintiff had not the legal capacity to sue, but that it did not show that the plaintiff was the administrator of the estate. In other words, appellants admit that, if it was shown that the plaintiff below was the administrator of the estate of Jane Brunk, then he had the legal capacity to sue, but that, as the plaintiff was not shown to be an administrator at all, and that as he sues in his personal capacity to collect a debt due an estate, the complaint does not show a right of action in him, but in an administrator of such estate. This question is properly presented by a demurrer for want of facts. Coddington v. Canaday, 157 Ind. 243, 61 N.E. 567. The title of the cause and the commencement of the complaint are as follows: "Frank L. Wagner, Administrator of the Estate of Jane Brunk, deceased, v. Edward Toner and Albert D. Toner, Sr. The plaintiff in the above entitled cause, as administrator of the estate of Jane Brunk, deceased, complains," etc.

We are asked by counsel for appellants to disregard the words "as administrator of the estate of Jane Brunk, deceased," in the body of the complaint, and to construe that pleading as if the action were brought in the name of Frank L. Wagner alone, with no designation of the character in which he sues, and with no indication of his connection with the note sued upon. This we do not feel authorized to do. The statutory rule requires that a liberal construction shall be given to the pleadings in civil causes, with a view to substantial justice between the parties. § 379 Burns 1901. A somewhat similar objection was taken to the complaint in Durham v. Hudson, 4 Ind. 501, and the court said: "The counts all show plainly enough that the plaintiff was suing as administrator, and the proper judgment was rendered. We shall not disturb the judgment on this ground."

In Kelley v. Love, 35 Ind. 106, the plaintiff was described as "Executor of Oliver H. Smith's estate," and in the body of the complaint he was styled "executor of the last will of Oliver H. Smith." The court said: "The first point made is that the complaint does not allege the death of Smith, and that Love had been appointed the executor of his will. We think these facts sufficiently appear. It is true that they might have been, and perhaps, generally are, alleged in a more direct manner than in this case." See, also, Hansford v. VanAuken, 79 Ind. 157, 158, 160, and Hansford v. VanAuken, 79 Ind. 302, 304, in which Kelley v. Love, supra, is cited.

A formal allegation of the death of Mrs. Brunk, and of the issuing of letters of administration upon her estate to the person named as administrator, would have been more in accordance with the rules of good pleading and with approved precedents than the form of averment adopted; but, under the liberal provisions of the civil code, as interpreted and applied by this court, the complaint must be held sufficient. While there is some diversity of opinion as to the necessity of such allegations of the death of the intestate and the appointment of the administrator or executor, the tendency of the courts is toward a relaxation of the strictness of the common law rules of pleading, and it is now generally held that no formal words are essential to show the representative character in which the plaintiff sues. Lucas v. Pittman, 94 Ala. 616, 10 So. 603; Cordier v. Thompson, 8 Daly 172; Beers v. Shannon, 73 N.Y. 292; Chamberlain v. Tiner, 31 Minn. 371, 18 N.W. 97. It may also be observed that the statute expressly dispenses with profert of the letters of administration, and requires that any denial of the right of the alleged administrator to sue shall be made under oath. § 2447 Burns 1901.

In the present case no one could be misled by the title of the cause, or by the averments in the body of the complaint as to the character in which the plaintiff sued, his title to the note, or that the payee of the note was dead. But, even if there had been any merit in these objections to the form of the complaint, the defects complained of were effectually cured by the admission of record by the appellants that Jane Brunk had died intestate, and that the plaintiff, Frank L. Wagner, was the duly appointed and acting administrator of her estate.

It is contended that a new trial should have been granted for the reason that the court permitted the appellee to give in evidence a note which had stamped upon its face the words and figures, "Kewanna Bank, March 8, 1897, paid Kewanna Indiana," which words and figures did not appear in the...