Grisingher v. Shaeffer

McCOMB, J.

This is an appeal by plaintiff from a judgment dismissing the action as against defendants Estate of Mary W. Shaeffer, deceased, and Fred A. Shaeffer, as administrator of the estate of Mary W. Shaeffer, deceased, after the trial court sustained a demurrer to the complaint.

The facts are these:

Plaintiff filed an action on a promissory note signed jointly by Fred A. Shaeffer and Mary W. Shaeffer. Prior to the filing of the action Mary W. Shaeffer died and a claim on the aforesaid promissory note was allowed, approved, and filed against her estate. In the present action Fred A.

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Shaeffer, Estate of Mary W. Shaeffer and Fred A. Shaeffer, as administrator of the estate of Mary W. Shaeffer were joined as defendants. Defendants demurred to the complaint on the grounds that (1) it failed to state a cause of action, and (2) there was a misjoinder of parties defendant.

These are the questions presented for determination:

First: Is there a misjoinder of parties defendant when the administrator of an estate, against which a claim, based upon a prormssory note has been allowed, approved, and filed, is joined with the surviving maker of the promissory note

?

Second: Was the following allegation in the complaint a sufficient allegation of the representative capacity of defendant administrator:

“That Mary W. Shaeffer, during her lifetime, was a resident of the City of Santa Maria, County of Santa Barbara, State of California; that said Mary W. Shaeffer died after the 14th day of July, 1933, and that the Estate of Mary W. Shaeffer, deceased, is now in process of administration in the said County of Santa Barbara, State of California, and that Fred A. Shaeffer has been appointed, has qualified, and is acting administrator of the Estate of Mary W. Shaeffer, deceasedV’

Third: Can objections to the prayer of a complaint be raised by demurrer

?

The first question must be answered in the negative. The law is settled that the administrator of a deceased debtor or promisor may be joined as a party defendant with the surviving obligor.