Hecker v. Hogan

KNIGHT, J.

This is an appeal from a judgment entered against appellants as sureties on a bond given on appeal to stay the execution of a money judgment in the sum of $11,890, rendered against Walter Hogan in an action to recover upon several promissory notes.

The record discloses that the action was commenced by “Barbara Hecker, as administratrix of the estate of Charles Valentine Hecker, deceased,” and on February 19, 1924, judgment wa.s rendered in favor of “plaintiff, Barbara Hecker, administratrix of the estate of Charles Valentine Hecker, deceased,

and sole heir of said estate.”

(Italics ours.) Hogan appealed ‘ to the supreme court, but on respondent’s motion the appeal was dismissed. Two days after the

remittitur

was filed in the trial court, and on April 10, 1925, pursuant to a motion presented on behalf of

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Mrs. Hecker, an order was made and entered which, after reciting that the promissory notes sued upon had been dis-' tributed to Barbara Hecker by virtue of the decree of dis-' tribution made and entered in the matter of the estate of her deceased husband, ordered that 11 Barbara Hecker, an individual, be . . . substituted as plaintiff herein in place and stead of Barbara Hecker as administratrix,” etc. Hogan failed to satisfy the judgment, and on April 18, 1925, on motion of Barbara Hecker as plaintiff in the action, judgment was entered against appellants as sureties on the stay bond given on Hogan’s appeal.

The contentions appellants make on this appeal are centered upon the order of substitution of the party plaintiff, it being claimed that at the time said order was made “there was no administratrix in existence” because the estate of Charles Valentine Hecker had been closed and the administratrix discharged; that consequently Barbara Hecker as an individual obtained no valid judgment against Hogan and that, being invalid against Hogan, the judgment is unenforceable against his sureties; also that “the undertaking given by appellants only authorized the entry of said judgment in favor of the administratrix and not in favor of Barbara Hecker as an individual,” and therefore the obligation accruing thereunder did not inure to the benefit of the latter.