Woods v. State ex rel. Robt

• Decision Date: 31 July 1847
• Citation: 10 Mo. 698
• Parties: ISAAC WOODS ET AL. v. THE STATE OF MISSOURI, TO THE USE OF ROBT. RAINEY.
• Court: Missouri Supreme Court

10 Mo. 698

ISAAC WOODS ET AL.

v.THE STATE OF MISSOURI, TO THE USE OF ROBT. RAINEY.

Supreme Court of Missouri.

July Term, 1847.

APPEAL FROM GREENE CIRCUIT COURT.

HENDRICK, for Appellant. 1. The bond sued on, is not such a bond as the statute authorizes suit in the name of the State to the use of Robt. Rainey, by his curator, to be brought on. The bond not being a statutory bond, there is a material distinction between the condition of the bond sued on, and that of the statutory bond, to be given by administrators. 2. The breach found to be true by the jury, is not sufficiently specific, because it does not specify which settlement or settlements, required to be made by the administrator he failed to make; nor does it charge, that the administrator totally failed to settle his accounts. The breach ought to have charged, either a total failure to settle, or specifically charge, which of his settlements required by law to be made, he failed to make. Rev. Stat. p. 65, act prescribing forms of Administrators Bonds; Rev. Stat. § 5, p. 782, act to regulate Actions on Penal Bonds.

EDWARDS, for Appellee. 1. The defendants having failed to plead, according to the leave given by the conrt, and having failed to file any plea in answer to said action, the plaintiff was entitled to judgment by default. Rev. Code 1845, p. 814, § 36. 2. The declaration being substantially good, could only be reached by special demurrer. The motion in arrest, will not reach an objection merely technical, after judgment by default. 3. The judgment cannot be arrested, for anything that would be cured by verdict. See 1 Saund. 228, n. (1); 1 Chitty's Pl. 370; 9 Mo. R. 778. 4. The bond sued on is good. It is true that it contains more than is required by the statute to be recited in the bond of an administrator. The law allows and authorizes a variance from the statute, in bonds given by administrators with the will annexed. See Rev. Code 1835, p. 43, § 15, 5. The bond is substantially good. Rev. Code 1845, p. 43, § 15. See also the argument of this court, Jones v. The State of Missouri, 7 Mo. R. 81; Grant v. Brotherton, 7 Mo. R. 458; The State, &c. v. Porter, 9 Mo. 356; Henry et al. v. The State, &c., 9 Mo. R. 778.

McBRIDE, J.

William Townsend, curator of Robert Rainey, brought an action of debt in the Greene Circuit Court, in the name of the State of Missouri, to his use, against Isaac Woods, administrator, with the will annexed of George R. Rainey, deceased, and Henry and Jesse Hickman, as his securities, on his official bond, to recover the distributive share of the said Robert, who is one of the legatees of said George R. Rainey, deceased. The bond upon which the action was brought, contains the following condition, to-wit: “That if the said Isaac Woods, administrator, with the will annexed, of all and singular the goods and chattels, lands and tenements, rights, and credits, which were of the said George R. Rainey, deceased, should make, or cause to be made, a true and perfect inventory of all and singular the goods and chattels, lands and tenements, rights and credits of the said deceased, which had or might come into the hands, possession or knowledge of him, the said Isaac Woods, or into the hands or possession of any one for him; and the same, so made, return and exhibit in the office of the clerk of the County Court for the county of Greene, within such time and in such manner as was or might be prescribed by law; and of all and singular the moneys, goods and chattels, lands and tenements, rights and credits of the said deceased, accruing from or arising out of said estate, which should come to the hands, possession or knowledge of him, the said Isaac Woods; should well and truly administer according to law, and pay the debts...