65 P. 20 | Or. | 1901
delivered the opinion.
Elmer Pruitt, a minor, brought this action by W. G. Overholt, his guardian ad litem, against Jennie Muldrick, as executrix of the last will and testament of John Muldrick, deceased. The complaint sets up the minority of Pruitt, the appointment of Overholt as guardian ad litem, his qualification, the decease of Muldrick, the probate of his will, the issuance of letters testamentary to defendant, the presentment of the claim sued on, her disallow- . anee thereof, and the manner 'in which the indebtedness arose, etc. The defendant denied that John Muldrick ever became indebted to plaintiff in any sum ; and for a separate defense, sets up the presentation of said claim by plaintiff for allowance,, her rejection thereof, and indorsement “examined and disallowed,” with the date, the subsequent service upon her of ten days’ notice that he would present the claim to the county court for allowance, the presentment thereof, and its rejection and dis-allowance by said court, which action, it is alleged, has the force and effect of a judgment and bars the plaintiff’s action. To this answer a demurrer was interposed, which being overruled, the action of the court in that respect, constitutes one of the assignments of error. The reply is in avoidance of the'separate defense, and avers that plaintiff, being a minor,, filed his petition in the county court praying that one Charles Timms be appointed his guardian ad litem to present and prosecute said claim in
The court below, therefore, erred in its treatment of the matter, hence the judgment will be reversed, and the cause remanded for such other proceedings as may seem proper. Beversed.