65 Iowa 40 | Iowa | 1884
The agreed statement of facts is as follows:
2. The said W. Y. Baird, after giving said note, and before the commencement of this action, died, intestate, leaving the plaintiffs his heirs at law; and no administration has been granted on the estate of said W. Y. Baird.
3. That the said Baird was the owner of the said note at his decease, and the only title the plaintiffs have to said note is the right they have as heirs at law of said W. Y. Baird.
4. Said L. H. Brooks has not been served with original notice in this action.
That plaintiffs, the heirs at law of W. Y. Baird, are all of lawful age.
That before the commencement of tl’is suit defendant, Brooks, removed to Webster county, Iowa, and, though notice of the pendency of this suit was sent to the sheriff of said 'Webster county, defendant, Brooks, was not found.
The question presented by counsel for appellant is whether the plaintiffs can maintain the action. It is claimed by counsel that the heirs of W. Y. Baird have no authority or control over the personal assets of the estate, and cannot collect the debts due, because such authority and control is vested in the administrator of the estate. It is claimed for appellee that the defendant should have demurred, and that he cannot raise a question as to defect of parties in this court. It appears, however, that Hoyt appeared and answered. What his answer was is not shown. Wo will presume that the agreed facts were pertinent to the issue. Besides, we think that the objection was jmoperly presented in the statement of facts, and, under section 3413, of the Code, a submission of a case upon an agreed statement of facts “ shall be an abandonment by both parties of all pleadings filed in such cases.”
The question here presented is not an open one in this state. In Haynes v. Harris, 33 Iowa, 516, it was expressly
Reversed.
