Williams v. Carr

• Decision Date: 26 February 1894
• Docket Number: 455 [1]
• Citation: 36 P. 644,4 Colo.App. 363
• Parties: WILLIAMS v. CARR.
• Court: Colorado Court of Appeals

36 P. 644

4 Colo.App. 363

WILLIAMS v. CARR.

Court of Appeals of Colorado

February 26, 1894

Error to district court, Arapahoe county.

Action by George W. McCrary against H.C. Ulman and A.J. Williams. Death of plaintiff being suggested, H.F. Carr, administrator was substituted. From a judgment for plaintiff, defendant Williams appeals. Affirmed.

Hon George W. McCrary, formerly United States circuit judge of this judicial circuit, on the 13th day of May, 1890 commenced suit to recover the balance due upon a promissory note, of which the following is a copy: "$2,000. Denver Colo., April 12, 1884. Sixty days after date, we, or either of us, promise to pay to George W. McCrary, or order, two thousand dollars, at the Colorado National Bank, Denver, Colorado, with exchange, for value received, with interest at the rate of 10 per cent. per annum after due until paid. Interest due and payable semiannually, and if not paid when due the interest shall draw the same interest as the principal; and the principal, at the option of the holder thereof, becomes due. If this note is not paid at maturity, the undersigned agrees to pay expenses and costs of collection, including attorney's fees, for the benefit of payee or holder. The makers, indorsers, or grantors hereby waive presentment for payment, protest, and notice of protest. H. Charles Ulman. A.J. Williams." No service was had on Ulman. On the 15th of September, 1890, the death of plaintiff was suggested, and leave asked to substitute Frank E. McCrary and Henry L. McCune, executors of the last will and testament of George W. McCrary. No objection was interposed, and the substitution was made on the same day. On November 27th, plaintiff in error filed a motion to dismiss the suit, alleging that the executors, McCrary and McCune, who had been substituted as plaintiffs, were appointed and qualified in the state of Missouri, and had no authority to sue and be sued outside of the state of Missouri, and that the court lost jurisdiction upon the substitution of the executors. The motion was denied December 22d, and on January 5, 1891, the defendant Williams answered: First. Setting up the same matters contained in the motion to dismiss. Second. Admitting that although he was, with Ulman, a joint maker of the note, he was in fact only an indorser; that all consideration for the note was received by Ulman, and that George W. McCrary, the plaintiff, had full knowledge of the facts; and that the plaintiff, without his knowledge or consent, for a consideration paid by Ulman, extended and postponed the time of payment, by reason of which he was discharged and released. Third. That, after the maturity of the note, Ulman delivered to the plaintiff the mining and milling bonds in the complaint mentioned, but not as security, as alleged, but that they were delivered by the said Ulman, and received by the plaintiff, in full payment and discharge of the demand. Fourth. That, after the maturity of the note, Ulman transferred to the plaintiff $2,000 in bonds (the same mentioned in the complaint), as security for the payment of the note, and afterwards, in June, 1886, the plaintiff, without right or authority, and without notice to Ulman, and without advertisement or publication, sold the bonds for $1,600; that at the time of such sale the bonds were worth more than the amount due upon the note, etc. Harry F. Carr, having been appointed administrator in this state, on the 9th day of February, 1892, applied to the court to be substituted as plaintiff in the place of the foreign executors, which was done. Plaintiff filed a replication to the answer of defendant Williams. A trial was had to the court, without a jury; a finding for the plaintiff; and judgment for $1,550.81.

Thomas, Bryant & Lee, for plaintiff in error.

V.D. Markham, for defendant in error.

REED J. (after stating the facts).

The first error relied upon in argument was the failure of the court to dismiss the suit because of the death of the plaintiff, and the substitution of the foreign executors, and the substitution of the defendant in error, administrator, as plaintiff. The claim is "that, the suit having been commenced in the name of George W. McCrary, upon his death the same abated, and could only be revived by his executor or administrator." This position is untenable. The suit did not abate by the death of the plaintiff. Section 15 of the Civil Code is as follows: "An action shall not abate by the death or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death or any disability of a party the court, on motion, may allow the action to be continued by or against his representative or successor in interest." There is no question that in this class of cases the cause of action...