Brent v. Shook

Mr. Chief Justice Walker delivered the opinion of the Court: We are asked to reverse the judgment of the court below, because the demurrer to appellee’s declaration was overruled. It is insisted that appellee sued as administrator and failed to make proferí of his letters of administration, and that the declaration was for that reason defective. He is described in the declaration as Dykeman Shook, Sen., administrator of the estate of Thomas Evarts, deceased. But there is no averment that he was administrator, or that he sued as such. This description of appellee does not indicate that he sued in his representative capacity. It simply distinguishes him from all other persons of the same name. It is merely a description of the person, and this being so, it was unnecessary to make profert of the letters of administration. , It is likewise insisted that the court erred in rendering judgment against one defendant when both were in court. By the sheriff’s return it appears that Brent was served, but no return is made as to Brown. The cause was continued at the return term, by an order which recites that, “ this day came defendants by attorney, and on his motion it is ordered, by the court, that this cause be continued,” etc. The order seems to be contradictory, as the person or persons, whichever it be, is referred to in both the singular and plural number. But we see that Brent was alone served with process, and he alone filed a demurrer, nor is there anything else in the record to indicate that Brown ever entered his appearance, until this entry was made by the clerk. We see the attorney avoided entering his appearance, or doing anything by which it might be inferred that such was the design. We must therefore conclude that it was a clerical error in writing “ defendants ” in the plural when the singular was intended. This was easily done, as the addition of a single letter made the change. The judgment of the court below is therefore affirmed. Judgment affirmed.