Spaulding v. Allen

19 Ohio C.C. 609

• Court: Ohio Circuit Courts
• Decided: October 15, 1899
• Status: Published

Opinion

Marvin, J.

The motion to dismiss the petition in error in this case is overruled.

Suit was brought by Allen and others, trustees, against the administrator of the estate of R. P. Spaulding, deceased, upon a promissory note endorsed by the defendant.

The administrator had allowed the claim as valid. The heir at law of the decedent,in pursuance of the provisions of section 6098, Revised Statutes, after proper proceedings in the probate court, filed an answer to the petition setting up defenses to the' claim. The result upon trial was favorable to the plaintiffs, and judgment was rendered for plaintiffs against the administra! or.

The plaintiffs in error are the heirs at law who made the defense; they are not parties to the judgment.

We hold that the provisions of the statute which authorize the heirs in such action “to make any defense to such action which such administrator or executor could make” necessarily carries with it the right to test the regularity of the proceedings in the trial court, in the same manner as the administrator or executor could do, and this includes the right to institute and carry on proceedings in error.

Suppose the court had overruled a demurrer filed by these heirs to the petition, and had been clearly wrong, or had sustained a demurrer to their answer and had been clearly wrong, to hold that the heirs might not proceed in error to have such wrong righted, would cut them off from what the statute clearly gives them, viz: “To make any” — every—“defense- to such

action which such administrator or executor could make.”