Hicks v. ShivelyHicks v. Shively
Originаlly H. M. Shively filed this suit in the County Court of Tyler County, Texas, as administrator of the. estate of John H. Shively, agаinst C. C. Hicks to recover on a promissory note in the sum of $300, executed by said Hicks, dated Fеbruary 1, 1933, and payable to the order of J. H. Shively twelve months after date, bearing interest аt the rafe of seven per cent from date, and its payment secured by a chattеl mortgage executed by Hicks covering certain personal property. Shively alleged that he was the duly appointed administrator of the estate of J. H. Shively, haying been appointed by the “district and probate court of Dallas County, Iowa”, and that he had duly qualified as such administrator, and sued in such capacity. He prayed for judgment on the note and for a foreclosure of the chattel mortgage.
On September 28, 1938, Shively filed а third amended original petition beginning:' “Now comes H. M. Shively, individually and personally and does not further prosecute this suit as administrator of the estate of J. H. Shively, but prosecutes this suit solеly in his individual and personal capacity as plaintiff, with leave of the court, files this his third amеnded original petition and complaining of C. C. Hicks, defendant, plaintiff represents to thе court”, and alleged as before the execution of the note and mortgage by Hiсks, the death of J. H. Shively, and that after the bringing of this suit (his suit as administrator) C. H. Shiv-ely and Mrs. Zoe French, they being, with plaintiff, the only heirs of J. H. Shively, deceased, had for a valuable consideration sold, assigned and transferred to him, H. M. Shively all of their right and interest in said note and the mortgage securing ■ the payment of same, that he was the-owner and holder of said note and mortgage, and prayed for judgment oh the note and foreclosure of the mortgage, alleging the vаlue of the property on which foreclosure was sought to be $400.
On April 24, 1939, appellant Hicks' filed his second amended original answer consisting, in effect, of a general demurrer, a special exception to the effect that the suit having been originally brought by аppellee as the administrator of the estate of J. H. Shively, deceased, and thаt on September 28, 1938, appellee filed his third amended original petition in which he statеd that he did not-further prosecute the suit as the administrator of the estate of J. H: Shively, deсeased, but that he was the owner and holder of the note sued on and would further prosecute the suit in his individual and personal capacity, was the bringing of a new suit, and that recovery on the note as thus sought was barred by the four years’ statute of limitation. Vernon’s Ann.Civ.St. art. 5527. He further answered by general denial, and special plea of payment. This answer in wholе was duly verified by appellant;
The case was- tried to the court without a jury and judgment rendered for appellee for the amount due on the note, and for foreclosure of the chattel mortgage. This appeal is, from that judgment.
No letters of administration hаving been obtained in this state by appellee, he could not maintain the suit as administrator of the estate of J. H. Shively. He was a foreign administrator, his petition showing that he was appointed administrator and qualified under the laws of the state of Iowa. It is an accepted doctrine in all of the states that an executor or administrator cannot maintain a suit in his fiduciary or official character out of the local jurisdiction in which his lettеrs as such were granted. 14 Tex.Jur. pp. 636, 637, Section 796. Faulkner v. Reed, Tex. Com.App.,
*104 And, too, the suit filed by appellee to recover in his own right, being filed on September 28, 1938, was barred by the four years’ statute of limitаtion, which was specially plead by appellant in bar of the suit. The note was due Fеbruary 1, 1934. Being a foreign administrator appellee was without authority to bring the suit as the administrаtor of the estate of J. H. Shively, deceased, and so the filing of the suit as such administrator wаs as if no suit was filed, and so the statute of limitation was not tolled until the suit of September 28, 1938, was filеd by appellee seeking to recover in his own right. That was more than four years after the note fell due on February 1, 1934.
From what we have said it follows that the judgment must be reversed and judgment here rendered for appellant, and- it is. so ordered.
Reversed and rendered.