Waldo v. Milroy

The opinion of the court was delivered by Cordon, J. This action was originally commenced in the name of Lydia Waldo for the foreclosure of a real estate mortgage executed by the appellant Milroy. The respondents First Rational Bank, Richard Strobach, Rettie Strobach, E. A. Warriner, A. M. Hyatt and O. W. Bright were made parties defendant under the allegation that they had, or claimed, an interest in the premises subsequent to the mortgage lien. The plaintiff in the action as originally [158] commenced was a resident of the state of Connecticut. Subsequent to the commencement of the action, upon suggestion of the death of plaintiff, Simon S. Waldo, respondent, was on notice permitted to file an amended complaint, and to prosecute the action in his own name as owner of the note and mortgage. The amended complaint alleges the death of Lydia Waldo, the appointment of one John Waldo as her administrator by a Connecticut court and the assignment of the note and mortgage in suit by such administrator to the respondent. The appellant moved the court to strike the amended complaint, for the reason that it "substitutes a new and different cause of action from that set out in the original complaint.” This motion was denied; thereupon the appellant demurred to the complaint upon two grounds; first, that the plaintiff has no legal capacity to sue, and second, that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled, and the appellant answered denying upon information and belief all of the allegations of the complaint excepting that one in which it was alleged that he was an unmarried man. Upon these issues the cause proceeded to trial as between the parties to the controversy in this court, and resulted in a decree in respondent’s favor, from which decree this appeal was taken. The first contention of the appellant is that the court erred in denying his motion to strike the amended complaint. We think that contention and the second one, viz., that the court erred in overruling the demurrer to the complaint, may be considered together — they raise substantially the same question. It is appellant’s contention that the action abated by the death of Lydia Waldo (the original plaintiff) and that inasmuch as no administrator was appointed by any competent court of this state the assignee of a foreign administrator cannot maintain an ac [159] tion. We have in the recent case of Munson v. Exchange National Bank, decided March 21, 1898, ante, p. 125, determined this question adversely to appellant’s contention, and upon the authority of that case conclude that the court did not err in denying the motion to strike and overruling the demurrer to the complaint. The lower court also denied appellant’s application for leave to file an amended answer, setting up that if an administrator of the estate of Lydia Waldo had ever been appointed it was by some court without the state of Washington. This was but another form of raising the same contention already passed upon, and the court did not err in refusing leave to amend. We do not think that it was error on the part of the court to receive the record of the Oonnecticut court showing appointment of respondent’s assignor as administrator. ° The contention of appellant that the complaint did not sufficiently plead the proceedings had in the probate court in Oonnecticut, if tenable, should have been urged in form of a motion to make the complaint more definite. No reversible error appearing the judgment is affirmed. Anders, Dunbar and Beavis, JL, concur.