Bank of Stockton v. L. L. Howland & Co.

By the Court, Crockett, J.: This is an action against the several joint makers of a promissory note, who all appeared and pleaded to the merits, except one or two, who were duly served and made default. The defendant Coburn, died after his answer was filed, and before the trial; and thereupon an order was duly entered that the action proceed against his administratrix. Ho additional pleadings were filed, and on the trial the Court made written findings, and entered a judgment for the plaintiff, against all the defendants, including the administratrix, from which judgment, and from an order denying their motion for a new trial, the administratrix and three other defendants prosecuted this appeal. One of the grounds of error relied upon on the motion for new trial, and on this appeal, is, that there was no proof that the plaintiff's demand had been presented to the administratrix of Coburn [132]for allowance, and that, for this reason, the judgment was erroneous as to her; and that the action being on a joint demand, there cannot be several judgments. It is, therefore, claimed that the judgment should be reversed as to all the defendants.

The first point is well taken. Section one hundred and thirty-eight of the Probate Act provides that when a-defendant dies pending the action, the claim of the plaintiff shall be presented to the executor or administrator for allowance, and that no recovery shall be had in the action against the estate of the deceased without proof of such presentation. In this case there was no such proof, and the attention of the Court was specially called to this point on the motion for a new trial. It is, therefore, clear that a new trial ought to have been granted as to the administratrix. But this error does not invalidate the judgment as against the other defendants. At common law there could not be a joint judgment, even on a joint demand against the executor or administrator of a deceased obligor and the surviving obligors, for the reason that, as to the former, the judgment would be payable de bonis testatoris, and as to the latter, de bonis propriis. Hor has the rule been changed by statute in this State. On the contrary, our whole system of probate laws provides for the administration of the estates of deceased persons through the instrumentality of the Probate Court, which ascertains and directs the order in which the debts are to be paid, giving priority to such as are by law entitled to it. In construing this system this Court has repeatedly decided that in an action against the executor or administrator to enforce a demand against the estate, the only office of the judgment in such an action is to establish the demand as a valid claim against the estate; and it should appear on the face of the judgment that it is to be paid out of the assets of the estate in the due course of administration—an injunction which has been disregarded in this case.