Mahon v. Mahon's Administrator

"Worden, J. This was au action commenced by Mahala [325] Mahon, administratrix of the estate of Archibald Mahon, deceased, against the appellant. During the progress of the cause, the death of Mahala was suggested, and Myron F. Barbour was substituted, as plaintiff. The cause proceeded in the name of Myron F. Barbour, administrator of Archibald Mahon, as plaintiff. The action was brought upon promissory notes executed by the defendant, to the plaintiff’s intestate. Issues were formed in the cause, and tried by the Court, resulting in a finding and judgment for the plaintiff. Among the errors assigned, is this: That after the death of Mahala was suggested, there was no party plaintiff in Court who could prosecute the suit. This objection comes entirely too late. If Barbour had not been duly appointed administrator, de bonis non, of the estate, the objection should have been made, in some form, below, which was not done. Another error assigned, is, that the action had been once dismissed by the plaintiff below, and there was no order reinstating it. The original record, filed in this Court, shows that the plaintiff dismissed the action. An amended transcript, however, sent up on certiorari, which purports to be a full and complete transcript of the proceedings, does not show such dismissal. But, taking the original transcript as our guide, there is no error in this respect, for, after the entry of dismissal, the parties voluntarily appeared to the action, and submitted it for trial to the Court. This was a waiver of the dismissal. Bosley v. Farquar, 2 Blackf. 61. Wilson v. Coles, Id. 402. Clark v. The State, 4 Ind. 268. The other errors assigned, are based upon matters that can only appear by bill of exceptions. The motion for a new trial was overruled, and judgment entered, on or about the 20th of September, 1860, and sixty days were given to file a bill of exceptions. The bill of exceptions in the cause, was filed, as the clerk certifies, on [326] the 11th of January, 1861, and not being filed within the time limited, it constitutes no part of the record. D. D. Pratt and I). P. Baldwin, for the appellant. John B. Coffroth, for the appellee. Per Curiam. The judgment below is affirmed, with costs.