11 N.M. 419 | N.M. | 1902
OPINION OP THE COURT.
The judgment having been rendered upon the pleadings in this case, the state of the pleadings at the time the judgment was rendered, has been set out above, substantially, in full. The appellant, who seeks a reversal of the judgment, is a surety upon an administrator’s bond, and who stands in this court upon his answer in the court below, admitting the execution of the bond as alleged in paragraph three of the complaint; admitting the allegations of paragraph four, that his principal “did receive and take into his custody and possession as such administrator” the money sued for; admitting also the allegation that Conway “did not faithfully perform his duties as such administrator; admitting the further allegation that the said Thomas F. Conway, during his lifetime and while administrator as ■aforesaid; squandered, wasted and converted to his own use, all of the said sum of money so as aforesaid realized from the said life insurance policy and collected and taken into his own custody as such administrator aforesaid, by reason whereof the same became and still is wholly lost to the plaintiff,” and admitting the allegation of paragraph six that a demand was made upon him and the administrator, his principal to pay over the money which by judgment of the courts he was ordered to pay the plaintiff, and that they failed and refused to do so. These, and many other admissions, having been made by the appellant in his answer, and as the record shows an election to stand upon his answer, the sole denial of which was the insolvency of Conway, deceased administrator, which raised an immaterial issue, the court was clearly right in rendering judgment for the plaintiff upon the pleadings containing such admissions.
The counsel for appellant in this court, W. B. ■Childers, Esq., did not try this case in the court below, -and while counsel now seeks to raise issues not presented to or considered by the trial court, counsel as well as this court is concluded by the record as it comes to us from the lower court, and the case must be decided upon it. The admissions made by the defendant in his answer are conclusive here, as the judgment of the lower court was rendered upon the admissions of the defendant, v which have the effect of establishing the facts admitted without the necessity of proof.
It has been repeatedly held that objections not raised in the court below will not be considered in this court. 1 Ency. P. and P. 722; Brown v. McKee, 108 N. C. 387; People v. Stroller, 16 Hun (N. Y.) 234; Pueblo of Laguna v. Pueblo of Acoma, 1 N. M. 220; Coler v. Board of County Commissioners, 6 N. M. 88.
But if counsel for the appellant is correct, that the first clause of appellant’s answer properly raises the objection that this suit must be brought in the name of the Territory, we are of the opinion, that under the code of this Territory, the objection is not well taken. Subsection 2 of the code requires all civil suits to be brought in the name of the real party in interest, except as provided in subsection 3, which provides that “An executor or administrator, a trustee of an express trust, or a person expressly authorized by the statute may sue in his own name, without joining with him the persons for whose benefit the suit is prosecuted.” It will not be contended that under these provisions, the Territory is a person expressly authorized by the statute to sue, because the Territory is not the real party in interest. It is at most, only a nominal party to whom the bond is given as a mere matter of convenience, and the party entitled to recover the proceeds of a judgment upon an administrator’s bond is the real party in interest. That an administrator, executor, or trustee of an express trust, or a person expressly authorized by the statute may bring such action, need not be questioned here, but it does not follow that they must do so, because it will be observed that subsection 3, is different from subsection 2, in that it is a permissive section, and those authorized to bring suits in their own name, may or may not also join the person for whom the suit is prosecuted.
There is no statutory provision prescribing the form of an action on an administrator’s bond and specially authorizing the Territory to bring the suit, and in the absence of such a provision of law, we are of the opinion, that the beneficiary under such bond is the real party in interest, who under subsection 2 of the code, is required to bring the suit in his own name. Amazon v. Nash, 24 Ala. 279.
Pomeroy on Remedies and Remedial Rights, in section 138, says: “It is no longer, consistent with the provisions of the codes, possible for one person to sue to the use of another, as was common in some States. The parties beneficially interested must themselves bring the action. There are some cases which hold that when there is a trustee of an express trust, he must bring the action, and that the beneficiary can not in such case sue in his own name, at least, alona The correctness of this, rule may well be doubted. The section relative to the real party in interest is, in all codes, imperative, while that in relation to the trustee of an express trust is permissive.” Lytle v. Lytle, 2 Met. 1127; State v. Johnson, 52 Ind. 197; Shane v. Francis, 30 Ind. 92; Wilkes v. Moorehead, Stanton’s Code (Ky.) 31. Mr. Pomeroy in section 139 further says: “The result of this and other decisions is, that the third person for whose benefit an undertaking is entered into between other parties, may sue upon it, although such undertaking be an instrument in writing and under seal.”
Counsel for appellant directs our attention to some •authorities under the laws of Missouri and New York holding a different doctrine, but it will be found that in the States above named, there is a provision of statute prescribing in whose name the action shall be brought, but we have no such statute in New Mexico'.
In the case of Nevitt v. Woodburn, supra, the identical point sought to be raised in this case, was raised. It was contended in that case, that the authority to act as trustee did not devolve upon such administrator; that the sureties on the bond of an executor are not liable for the proceeds of real estate. The court said:
“It thus appears that judgment was rendered against the principal in the bond for money due from him as executor to the estate. This finding that the executor as such owed.the money to the estate, is binding-on the surety.” And the court further said in that case: “That the judgment in such case is res adjudicaba, and can not be collaterally attacked in the action on the bond.”
The case, of Carey v. Mann, 10 N. W. 211, decided by the Supreme Court of the State of Iowa, is directly in point here. In that case the court held that the surety on the bond of a deceased administrator was liable for the collection and misappropriation by the administrator, of the proceeds of the life insurance policy made payable to the legal representatives of the deceased, notwithstanding the existence of a statute of that State similar to ours, in exempting such proceeds from the debts of the deceased. At the time this decision was rendered there was a statute in force in Iowa to the effect that a policy of insurance on the life of an individual shall inure to the separate estate of the husband or wife and children independently of creditors. State v. Anderson, 84 Tenn. 321; Wasson v. Colburn, 99 Mass. 342.
The fact that the policy was not filed as an exhibit, nor specifically described in the complaint, is immaterial, as the suit is not upon the policy of insurance, hut upon the administrator’s bond, and the bond was filed as an exhibit.
Finding no error in the record, the judgment of the court below will be affirmed with costs, and it is so ordered.