Linton v. Skinner

Smith, C. J., delivered the opinion of the court. This is an action of replevin, brought by the appellee, as administratrix of the estate of Mrs. L. J. Pool, deceased, to recover from the appellant a cow and calf alleged to belong to the Pool estate. A copy of the administratrix's letters testamentary was not filed with or attached to the affidavit by which the action was commenced, no evidence of the appointment of the appellee as administratrix of the estate appears from the record to have been introduced at the trial. The judgment of the court below, which was for the appellee, was affirmed on a former day of this termi, and the appellant now suggests that we erred in so doing, for the reason that no copy of the administratrix’s letters testamentary w;as filed with the affidavit, and no evidence of her appointment as such was introduced at the trial. Assuming, for the sake of the argument, that it was necessary for the appellee to sue in and to allege her representative capacity, the appellant waived her failure to file a copy of her letters testamentary with the affidavit by which the suit was commenced by not specifically objecting thereto. If such objection had been made, it could have been met by filing the letters testamentary. Ligon v. Bishop, 43 Miss. 522; 18 Cyc. 989; section 808, Code 1906 (Hemingway’s Code, section 596). The appointment of the appellee as administratrix of the estate of Mrs. L. J. Pool, deceased, was not denied by a plea under oath; consequently she was not called on to prove it. Section 1974, Code 1906 (Hemingway’s Code, section 1634). The suggestion of error will be overruled. Overruled.