Clary v. Miller

WOOD (Parker), J.

On October 11, 1947, plaintiff commenced an action against E. H. Rupert to recover $7,000 and interest due for money lent. Said defendant filed an answer. In February, 1948, before the action was tried, the defendant died. In March, 1948, Jean R. Miller (daughter of said defendant) was appointed administratrix of the estate of E. H. Rupert, deceased. On April 6, 1948, plaintiff presented a creditor’s claim for said $7,000 and interest to the administratrix. Pursuant to an order granting plaintiff’s motion to amend the complaint, a first amended complaint, wherein Mrs. E. H. Rupert was also named a party defendant, was filed. Thereafter a second amended complaint, wherein Mrs. E. H. Rupert was also named a party defendant, was filed. The administratrix did not allow the creditor’s claim. On June 23, 1948, the plaintiff, after having elected to deem the claim rejected, served and filed a notice of motion to revive and continue the action against the administratrix of said estate, and for leave to file a supplemental complaint naming said administratrix as a party defendant. Said motion was granted on July 14, 1948, and the court also ordered that a summons be issued upon the supplemental complaint and that such summons and supplemental complaint be served on the administratrix. A supplemental complaint, wherein the administratrix and Mrs. E. H. Rupert were defendants, was filed. On October 5,1948 (after a demurrer to the supplemental complaint had been sustained with leave to amend), plaintiff filed a first amended supplemental complaint wherein the administratrix and Mrs. E. H. Rupert were named as

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defendants. Prior to the trial the action was dismissed as to Mrs. Eupert.

The court instructed the jury to return a verdict for plaintiff. The verdict was for plaintiff against the administratrix for $7,000. Judgment was entered, upon the verdict, for plaintiff for $7,000, with interest thereon at 7 per cent per annum from the date of judgment, and for costs in the sum of $101.30.

Defendant administratrix appeals from the judgment. She contends that (1) the first amended supplemental complaint did not state a cause of action against the administratrix; (2) the evidence was insufficient to support the judgment; and (3) costs should not have been awarded to plaintiff.

In the first amended supplemental complaint it was alleged, among other things, that on October 11, 1947, plaintiff filed an action against B. H. Eupert for $7,000 and interest due plaintiff for money lent to E. H. Eupert; that E. H. Eupert died on February 5, 1948, and Jean E. Miller was the duly qualified and acting administratrix of his estate; on April 6, 1948, plaintiff had duly presented to said administratrix a claim for the payment of the indebtedness described in the complaint on file herein which is the basis of the present action; a copy of said claim was attached to the first amended supplemental complaint, marked “Exhibit B,” and made a part thereof. (Said claim was in the usual form of a proper creditor’s claim and it recited as follows: “The sum of $7,000.00 is the balance due Philip V. Clary on loans made to Ellis H. Eupert by Philip Y. Clary, as evidenced by a photostatic copy of the written acknowledgment of indebtedness. There is interest due on said $7,000 at the rate of 3 per cent per annum from November 1, 1947. (A photostatic copy of the written acknowledgment of said indebtedness was attached to this claim) (See Exhibit ‘A’ herein) $7,000.00.” It was alleged further in said first amended supplemental complaint that a copy of said second amended complaint herein was attached to the first amended supplemental complaint, marked “Exhibit C,” and made a part thereof as though it were fully set forth therein. It was alleged in the first cause of action of said second amended complaint, so referred to and made a part of said first amended supplemental complaint, that on September 22,1945, E. H. Eupert was indebted to plaintiff in the sum of $8,000 for money lent before that time by plaintiff to him; he had agreed to pay interest at the rate of 3 per cent per annum; a copy of said evidence of