61 N.H. 504 | N.H. | 1881
Lead Opinion
The plaintiff had the right by statute to bring the suit in her own name as administratrix, though never having been appointed. G. L., c. 198, s. 10. The administrator subsequently appointed, refusing to come in and indorse the writ and prosecute the suit, though two terms of court have elapsed since the action was brought, it does not appear on what ground the *505
motion to dismiss was denied. The statute provides that actions brought, as this was, shall not be abated if the administrator appointed shall appear and indorse the writ and prosecute the suit as plaintiff at the first or second term; or, in other words, that the action shall be abated if the administrator does not appear and prosecute at the first or second term. It is not a matter of discretion whether the suit shall abate or not. Without the statute the suit could not have been brought as it was; and as no person, legally representing the deceased, appeared within the time fixed by the statute, and the administrator declines to appear, there is no plaintiff in court, and the action cannot be maintained. We are not aware of any case where a party has been kept in court as defendant when there is no plaintiff. Tappan v. Tappan,
Exception sustained.
CARPENTER, J., did not sit: the others concurred.
The foregoing opinion having been given at the June term, 1881, the plaintiff, at the next trial term, moved for leave to amend the writ by inserting the name of the administrator as plaintiff, on indemnifying him against costs. The motion was granted, and the defendant excepted.
Addendum
It would be a serious hardship and a grave injustice, if, after the plaintiff has lawfully brought her action as administratrix (G. L., c. 198, s. 10), she should, without fault of her own, lose the suit, because the administrator, subsequently appointed, and disregarding her interests, refuses to come in and prosecute it. Having in good faith undertaken to collect a claim belonging to her husband's estate, in which she has an interest, a compulsory abandonment of the suit may leave her without other redress than the precarious chance of charging the administrator, on the settlement of his account in probate court, for want of diligence and good faith, or the further expense and vexation of a suit upon the administrator's bond. The defendant cannot complain if he is put to his defence on the merits by a trial of this action, which will conclude the rights of all parties. A writ or declaration may be amended in various ways to prevent injustice. The form of action may be changed. Stebbins v. Insurance Co.,
Exception overruled.
BLODGETT and CARPENTER, JJ., did not sit: the others concurred.