120 Ind. 78 | Ind. | 1889
This was an action in the court below,, instituted by the appellant against the appellee to annul the letters of administration issued to the. latter, and to remove him from his trust.
The complaint contains two paragraphs, to which separate demurrers were filed and sustained by the court, and the proper exceptions reserved. Judgment was rendered for want of a sufficient complaint, and from that judgment the appellant appeals, assigning as error the ruling of the court below in sustaining the demurrers to the paragraphs of the complaint.
There is not a great deal of difference m the two paragraphs of complaint. The first paragraph alleges that John Crowder, the decedent, departed this life intestate, in the year 1854, in the Dominion of Canada, and the appointment in a reasonable time thereafter of an administrator at the place of his death; that he had no estate of any character or kind in the county of Marion, or State of Indiana,.on the 28th day of September, 1855, to be administered, but, notwithstanding, on that day one George W. Mears was appointed administrator of said estate by the court of common jileas for Marion county, State of Indiana; and continued-in that capacity until the year 1858, when his resignation was accepted by the court; that in the same year, there being no assets of said decedent in the county of Marion, or in the State of Indiana, at the time of said Meats’ appointment, and none having come into-the State afterwards, or if so the same were fully administered by said Mears; by the same court one Alexander Graydon was appointed administrator de bonis non of said estate, and continued as such until the 13th day of March, 1863, at which time he reported to the court that he had made search for property and could find
The only difference in the two paragraphs of the complaint is that in the second paragraph there is the additional averment that in the action brought by the appellee against the appellant a judgment was recovered on the — day of January, 1881, for the sum of $2,032.52. One of the elementary rules of pleading is, that the averments in a pleading must be clear and unequivocal. Bunnell v. Davisson, 85 Ind. 557.
“ The pleader is not at liberty to leave his pleading open to different constructions, and then take his choice between them.” Van Etten v. Hurst, 6 Hill, 311 (41 Am. Dec. 748); United States v. Linn, 1 Howard (U. S.), 104; Atwood v. Caswell, 19 Pick. 493.
Facts must be stated directly and positively, and not indirectly nor in the alternative. Stonsel v. Abrams, 7 Blackf. 516 ; Stone v. Graves, 8 Mo. 148 (40 Am. Dec. 131); Thompson v. Munger, 15 Texas, 523 (65 Am. Dec. 176).
Neither paragraph avers-in positive terms that there were no assets belonging to the estate within Marion county when
It is averred that after the appellee had been appointed he brought an action against the appellant upon the same alleged cause of action upon which Mears and Graydon had sued him while they were acting as administrators, and in the first paragraph it is alleged that the action is still pending ; in the second paragraph it is alleged that the action had been prosecuted successfully, and a judgment rendered for $2,032.52, and though, as a conclusion of the pleader, it is alleged that the estate had been finally settled when the appellee received his letters as administrator, the facts stated do not bear out the conclusion, but show simply that the preceding administrators had failed to discover assets belonging to the estate, and were by the court discharged from further execution of the trust, and the estate discontinued.
We can not well understand how there could have been'a final settlement of the estate, within the meaning of the statute, where no assets had been discovered on which to administer. Section 112, 2 G. & H. 517; Langsdale v. Woollen, 99 Ind. 575; Roberts v. Spencer, 112 Ind. 85.
It does not appear by positive averment that the appellant, during the time that the different administrators were seeking to enforce the claim which they asserted was due from him to their trust, was a resident of Marion county, Indiana, but there is no averment to the contrary ; and from the. facts and circumstances that are averred it is evident that he was a resident of said county. It is averred, among other things, that he was three times sued upon the claim in the courts of that county, and that he at no time claimed that that was not the county in which he resided.
If the appellant was a resident of Marion county, and he
The presumption must be in favor of the jurisdiction of the common pleas court of Marion county, it being the court that exercised jurisdiction of all matters of probate at the time each of the said administrators was appointed, and being as to such matters a court of general jurisdiction. Doe v. Bowen, 8 Ind. 197; Doe v. Harvey, 3 Ind. 104; Gerrard v. Johnson, 12 Ind. 636; Spaulding v. Baldwin, 31 Ind. 376; Walker v. Hill, 111 Ind. 223; Lantz v. Maffett, 102 Ind. 23; Valle v. Fleming, 19 Mo. 454; Sims v. Gay, 109 Ind. 501.
We are of the opinion that the first paragraph of the complaint is bad, because it does not allege that there were no assets belonging to said estate when the appellee was appointed administrator within the jurisdiction of the court,, but the averments as to that important and jurisdictional fact are equivocal, and leave the mind in a state of uncertainty as to whether there were or were not assets within the jurisdiction of the court.
The second paragraph ,of the complaint is bad, not only for the reasons stated as to first paragraph, bnt because it shows, prima fade at least, that the appellant was indebted to the appellee’s intestate in the sum of $2,032.52.
The court committed no error in sustaining the demurrers to the two paragraphs of complaint.
Judgment affirmed, with costs.