Wise v. Williams

Paterson, J. The demurrer of the defendants Hallinan, administrator of the estate of Sarah Connell,, deceased, and J. B. Connell, a minor, by Hallinan, his, guardian, was sustained, and plaintiff having refused to. amend, judgment was entered in favor of said defendants, for costs of the action. The grounds of demurrer are,, that the complaint does not state facts sufficient to constitute a cause of action, that the cause of action is barred by the provisions of section 337 of the Code of Civil Procedure, and that there is a defect or misjoinder of parties plaintiff in this: that said note and mortgage were executed to Christy and Wise, and John H. Wise and Thomas Denigan have brought this action as individuals, and have shown no assignment from Christy and Wise to them.

[546]The amended complaint was filed August 22, 1883. The note and mortgage were made May 2, 1877, and became due May 2,1878. The note ivas executed by John, and the mortgage by him and his wife, Sarah Connell.

On October 24, 1877, John and his wife filed a declaration of homestead on the land mortgaged to plaintiffs. Thereafter John died, and on July 19, 1880, Sarah, his widow, qualified as administratrix.

December 21, 1880, the claim of plaintiffs, which had been presented to the administratrix and the judge, was allowed and filed. December 27, 1880, the court set aside to Sarah Connell the land in suit as a homestead. February 17, 1882, Sarah Connell died. February 20, 1883, Williams was appointed administrator of the estate of John Connell.

Hallinan was appointed administrator of Sarah Connell’s estate, but the date of his appointment is not stated.

The other defendants are heirs of said John and Sarah Connell.

1. The complaint sets forth a copy of the note signed by John Connell, which is made payable to the order of Christy and Wise. It is then alleged “ that in order to secure the payment of said note the said John Connell and his wife did execute and deliver to John H. Wise and Thomas Denigan, composing the firm of Christy and Wise, a mortgage on those pieces of land,” etc. (describing them). The complaint further avers that on the second day of May, 1877, said John H. W. and T. D. were copartners doing business under the firm name of C. & W., and that said J. C., being indebted to said firm, executed and delivered to them his said promissory note.