Kenan v. DuBignon

Warner, Chief Justice. It appears from the record in this case that the plaintiffs brought their action as administrators of the estate of Seaton Grantland, deceased, against the defendant as executor of A. H. Kenan, deceased, for the sum of $3,326 37, for money collected by defendant’s testator as an attorney for the plaintiffs, and not as an attorney of their intestate. To this action the defendant filed two pleas, the general issue and plea of set-off, in which latter plea the defendant alleges that the plaintiffs, as administrators as aforesaid, before and at the commencement of their said action, were indebted to him as executor the sum of $2,000, etc. On the trial of the case, the plaintiffs offered in evidence their letters of administation, and the order of the Court of Ordinary, from which it appeared that the plaintiffs were administrators with the will annexed of Seaton Grantland. The defendant objected to the introduction of this evidence upon several grounds, which objections were overruled, and the papers read in evidence. The defendant then made a motion to non-suit the plaintiffs, on the ground that the evidence offered by them to show that they were the lawful administrators with the will annexed of Seaton Grantland, did not show that fact, but on the contrary, showed they were not the lawful administrators. The motion for non-suit was overruled by the Court. After hearing the other evidence in the case, and under the charge of the Court, the jury found a verdict for the plaintiffs. A motion was made for a new trial, on the ground that the Court erred in overruling the defendants’ motion for a 261 non-suit, and on the further ground that the verdict, being in favor of the plaintiffs in their alleged pretended capacity of lawful administrators, with the will annexed of Seaton Grantland, deceased, is a verdict against evidence and without evidence. The Court overruled the motion for a new trial and the defendant excepted. In our judgment, the motion for a new trial was properly overruled. The plaintiffs were entitled to maintain the action in their own names, without describing themselves as administrators, and if they did so describe themselves, it was merely surplusage. Besides, if they did sue in the capacity of administrators, it was not necessary for them to prove their authority to sue in that capacity at the trial, when the defendant had pleaded to the merits of the action, and pleaded a set-off against them in the capacity in which they sued as administrators, without denying their authority, in his plea, to sue in that capacity. Because the plaintiffs undertook to do more than they were required to do at the trial, did not prejudice the defendant's defense or any of his rights, so far as we can perceive. The verdict was right, under the admission made in the record as to the indebtedness of the defendant’s testator to the plaintiffs, and there was no error in the Court in refusing to disturb it. Let the judgment of the Court below be affirmed.