Colburn v. Carter

OPINION OF THE COURT BY KEMP, J. This motion is in all respects similar to the one in Colburn v. U. S. Fidelity and Guaranty Company (ante p. 479) and the.facts are the same except that judgment below in this case was in favor of defendants and plaintiff brought the case here on bill of exceptions and died after the case was entered in this court. If this suit is one which the executors could have originally prosecuted or maintained there would appear to be no difference between it and Colburn v. U. S. Fidelity and Guaranty Company. Since the question of whether or not this is a case which the executors could have originally prosecuted or maintained has not been presented we will for the purpose of this opinion assume that it is and allow the motion subject to the right of defendants to present that question if they so desire when the case is heard on the merits.