Shepherd v. Evans

9 Ind. 260

• Court: Indiana Supreme Court
• Decided: June 5, 1857
• Status: Published

Opinion

Stuart, J.

Evans sued Shepherd, Flanders, and Little, on their promissory note in these words, viz.:

“ One.year after date, we promise to pay James L. Evans, guardian of the estate of George Rector, minor heir of Samuel Rector deceased, one thousand dollars, with interest, and without regard to valuation or appraisement laws. April 1,1854;” signed, &c.

The record states that the parties appeared, and the defendants filed their joint answer; but no answer is set out.

Trial by the Court, and judgment for the note and interest. Motion for a new trial overruled.

A bill of exceptions sets out the note as the only evidence in the cause. The point made is, that the note is not sufficient evidence to sustain the judgment below. This was the ground assumed in the motion for a new trial, and assigned for error here. In support of this position, it is argued that, from the face of the note, the plaintiff, Evans, had not the legal interest in it; but that it belonged to George Rector, his ward; and that, therefore, under the new practice, the suit could not be maintained in the name of Evans.

It does not appear from the face of the note that young Rector was in any way interested in the avails of it. The note and its consideration might have been Evms’s private property; and his description as guardian of Rector put in merely to distinguish him from another person of the same name. The words “guardian of the estate of George Rector J &c., may be> regarded as surplusage, or as descriptio personae. Capp v. Gilman, 2 Blackf. 46.—Barnes v. Modisett, et al., 3 id. 253. The same point has been repeatedly decided in this Court since.

Hence, there is nothing in this record to show but that the suit is prosecuted in the name of the real party in interest as required by the statute. 2 R. S. p. 27, s. 3. The very next section (s. 4) provides, that an executor, administrator, or guardian of a lunatic may sue, &c. And though guardian of a minor is not named, that class of suitors is clearly within the meaning of the act. So that, if it appeared that Evans was the guardian of Rector, that would be no valid objection, within the spirit and meaning of the foregoing statute.

D. Moss, for the appellants. G. H. Voss, for the appellee.

Besides, one of the duties imposed by the act touching the relation Of guardian and ward, is to “ collect all debts due to such ward.” This, of course, implies the right to sue to enforce such collection. 2 R. S. p. 324, s. 9.

We have been thus particular with a very plain question, because the exception to the opinion of the. Court was properly taken under the practice as explained in Zehnor v. Beard, at the last term

(1), and the question fairly presented here.

Per Curiam.

The judgment is affirmed, with 3 per cent, damages and costs.

8 Ind. R. 96. See, also, Jolly et al. v. The Terre Haute Bridge Co., post, and cases cited.