57 S.C. 134 | S.C. | 1900
The opinion of the Court was delivered by
The complaint in this case was to recover balance upon certain notes by the defendant, Abel Aiken, to John E. Hardee. The answer, among other defenses, denied “each and every allegation in the complaint.” It appears in the complaint that John L. Hardee was a resident of Georgia, and the third paragraph of the complaint which relates to the contention before is as follows: “3. That said John E. Hardee died testate, on the 15th day of September, 1894, leaving in force and effect his last will and testament, by which these plaintiffs were appointed the executor and executrix thereof; and said will has been duly proved and admitted to probate in the office of the ordinary for Chatham County, in the State of Georgia, and letters testamentary issued and granted to these plaintiffs by said ordinary, and these plaintiffs have qualified and entered upon the discharge of their duties as such executor and executrix.” The plaintiffs, contending that the general deniel by the defendants raised no issue as to this third paragraph of the complaint, offered no evidence to sustain it. The Circuit Court dismissed the complaint, ruling as follows upon the question made: “The plaintiff has offered no evidence to sustain the allegations of this third paragraph of his amended complaint; and there is admitted to be an entire lack of such evidence. The plaintiffs contend that no issue was presented by the pleadings as to these facts, which they argue pertain to the plaintiffs’ right or capacity to sue, and not to the cause of action. I cannot sustain this contention. These facts are material to the plaintiffs’ cause of action.
To this appellants except as follows: “i. That his Honor, the presiding Judge, erred in holding that in an action by an executor and executrix on a contract made with their testator in his lifetime, it is necessary, in order to recover, for them to prove the fact that they are such executor and executrix, when the allegations are met by a general denial. Whereas, his Honor should have held that a general denial admits their right to sue in their representative capacity. 2. That his Honor, the presiding Judge, erred in holding that the allegations as to plaintiffs’ appointment as executor and executrix were material to the plaintiffs’ cause of action, in that they claim title to the chose in action by reason of their appointment. Whereas, his Honor should have held that said allegations were merely collateral to the cause of action, relating rather to the capacity of the plaintiffs to sue, inasmuch as the plaintiffs claim no personal right of action, but only a transmitted right coming to them as the representatives of their deceased testator.”
This Court, in Hankinson v. R. R., 41 S. C., 16, approved in Mickle v. Construction Co., 41 S. C., 397, stated the gene
The judgment is, therefore, affirmed.