Vickery v. Beir

| Mich. | Jul 11, 1867

Cooley J.

It appears from the record in this case that the action was commenced by John Yickery as plaintiff, and that after plea of the general issue by the defendant, Holdridge, the plaintiff’s death was suggested of record, and the cause revived in the name of Martha B. Yickery as his administratrix. The cause afterwards went to trial, and the defendant, Holdridge, offering evidence to show that the plaintiff’s appointment as administratrix was made in another state, the plaintiff admitted the fact, but denied its competency as evidence; and thereupon the Court decided that the action could not be maintained, and rendered judgment against tbe plaintiff for costs.

It is conceded by tbe plaintiff tbat tbe force of a grant of administration is confined to tbe jurisdiction granting it; but it is claimed tbat when one sues as administrator, tbe defendant admits tbe representative character if be fails to put it in issue by his plea. As a general rule this is correct; and it is only necessary to see whether it is appbcable to tbe present case.

When tbe suit is brought in tbe first instance by an administrator, tbe practice requires him to make profert of bis letters by bis declaration. — Bac. Air. Executor, Gj 1 Chit. PI. 420; 2 Greenl. Ev. § 338. Tbe defendant is thereby notified not only of tbe character tbe plaintiff asserts, but of tbe source of bis authority. He is thus enabled to plead intelligibly if be deems the claim unfounded; and be may demand oyer for tbe purpose. Tbe plea ne wnques executor, though sometimes pleaded in abatement, is properly a plea in bar, since it goes to tbe plaintiff’s title, and can not give him a better writ. Tbe reason for bolding tbe defendant precluded from disputing the plaintiff’s right to sue when be has pleaded to the merits is, tbat tbe plea is interposed after tbe profert of tbe letters has enabled him to judge of their sufficiency. — 1 Chit. Pl. 489; 2 Stark. Ev. 315; McKinley v. Braden, 1 Scam. 67; Copewood v. Taylor’s Admr. 7 Port. 33. If it appeared by tbe profert or on oyer tbat tbe plaintiff was a foreign administrator, tbe defendant might demur; and even if be failed to take tbe objection in any form by bis pleading, it would still be open on motion in arrest of judgment, or on error, if tbe record disclosed tbe defect.

Where, however, tbe action was originally brought by a party suing in bis own right, and bis death is suggested of record, different considerations prevail. The proceeding to substitute tbe administrator is entirely a matter of statutory regulation, and its effect upon the rights of parties can not properly be extended beyond what the statute has provided, on any mere fanciful analogies to the common law practice. Except upon the idea that a plea to the merits is an admission of the character in which the plaintiff sues, he woxxld be bound to prove his letters, since his title depends xxpon them; but it is difficult to perceive how there can be such an admission by a plea interposed before the representative character exists. The proceeding on suggesting the death of a plaintiff is entirely ex parte, and there is no provision of statute by which notice of it is to be given to the defendant. If he happen to be present, he has no right to intervene, and if he be not present, the first intimation he receives of it may be when he is served with notice of trial. He then learns by the entitling of the notice that a change in the parties has taken place. But he is not apprised when or where the plaintiff was appointed administrator; and if he resorts to the files for information, he may or may not obtain it there. There should be proof presented to the Court in all cases when the death is suggested; but the practice is lax in this respect, and we can not presume' that it will always be furnished and -filed. We are not apprised by the record that it was furnished in this case. It is not always easy for the defendant to obtain, under such circumstances, the information which would be furnished him by profert and on oyer, since there is no way in which he can legally demand it; and where the original plaintiff was a non-resident, he can not always know that the claim of administration is well founded. The plaintiff, nevertheless, insists that the representative character is admitted, unless the defendant pleads puis darrein continuance, and pxxts it specially in issue, but we do not perceive that the reason which makes plea after profert an admission can have any application here. If the suggestion which has been entered of record could be treated as an amendment of tbe declaration, it would not supply tbe want of profert, nor enable the defendant to demand oyer. The defendant, therefore, can not be held to admit the letters of administration, since they axe not supposed to have been shown to him, and the record supplies no information concerning them. The most that can be done in any case is to hold the defendant to admit such facts as are pleaded by the plaintiff and not denied. In those states where the practice dispenses with profert — ms in Massachusetts — there is probably some other mode by which oyer can be had if the defendant doubts the plaintiff’s title; but their practice is a departure from that of the common law.' — Langdon v. Potter, 11 Mass. 313. We have adhered to the common law practice in this state, and, as we think, for very good reasons.

We do not find any case which has held the defendant precluded from disputing the representative character in a case like the present. In Copewood v. Taylor’s Adm’r. 7 Port. 33, the nature of the issue does not appear, and that fact was remarked upon by the Court. No other case to which our attention has been called is in point. We are of opinion that in such a case the representative character of the plaintiff is in issue, and that the defendant has a .right to dispute it. No other rule can fully protect him, and the plaintiff cannot possibly be wronged by it, since, if he holds a valid grant of administration, no evidence that can be offered can disprove it or take the plaintiff by surprise. This case does not require of us the expression of opinion as to the burden of proof in such cases; but we are entirely satisfied that when the defendant has not had profert so that he can see whether the letters are such as will protect him, he is not precluded from disputing their validity under the general issue. That would be an anomaly in the law which should make the defendant’s plea an admission of facts subsequently occurring, so as to preclude him from denying the plaintiff’s right to recover, when confessedly she has no title whatever, and the judgment in her favor could not protect him. against another recovery for the same cause of action by an administrator appointed, in this state.

We think the judgment correct, and it must be affirmed.

Christiancy and Campbell, JJ. concurred. Martin, Ch. J. did not sit.