13 S.D. 433 | S.D. | 1900
. This was an action originally commenced by Lucy M. Bunker, as executrix of the estate of James V. Bunker, deceased. Since the commencement of the action, the executrix, Lucy M. Bunker, has died, and on motion George V. Bunker, William I. Bunker, and Samuel F. Bunker, administrators of the estate of James V. Bunker, deceased, have been substituted as plaintiffs in place of Lucy M. Bunker, executrix, deceased. The action was brought upon a promissory note executed by C. B. Taylor and Maris Taylor to said James V. Bunker, deceased. On the trial the defendant Maris Taylor moved the court to dismiss the action for the reason that the present administrators have no legal right to maintain the same. The death of Lucy M. Bunker, executrix, who commenced the action, is admitted, and the appointment of the three persons named as administrators was shown by the rec
Again, it is contended on the part of the appellant that the summons in this action which was ordered published, and which was personally served upon the defendant without the state, was not the summons originally issued in the action in which Lucy M. Bunker was plaintiff, but was a new summons, issued after the three persons named as plaintiffs were substituted for the said Lucy M. Bunker, and that, therefore, the order of publication and the service of summons were void. But we cannot agree with the appellant in this contention. The summons which was served upon C. B. Taylor was substantially in the following form: “George V. Bunker, William I. Bunker, and Samuel F. Bunker, substituted as plaintiffs by order of the court in place of Lucy M. Bunker, deceased v. C
This brings us to the important 'question, did these proceedings have the effect of making C. B. Taylor a party to the action? Sub-division 2 of Section 5260, Comp. Laws, relating to the admissibility of evidence, provides: “In civil actions or proceedings by or against executors, administrators, * * * neither party shall be allowed to testify against the other, as to any transaction whatever with, or statement by, the testator or intestate, unless called to testify thereto by the opposite party.” This subdivision, as was stated in the former opinion, contains exceptions to the general rule laid down in