State ex rel. Allen v. Pare

28 Mo. App. 512, 1888 Mo. App. LEXIS 18

• Court: Missouri Court of Appeals
• Decided: January 9, 1888
• Status: Published

Opinion

Ellison, J.

This action is on the bond of defendant, M. Pare, and the other defendants as his sureties, executed for the faithful administration of the partnership estate of W. EL Edington & Company, the breach being a failure to pay a demand alleged to have been allowed against the partnership estate. Plaintiff suffered a non-suit on account of adverse rulings on his evidence, and failing to have it set aside he appeals.

The petition alleges that W. EL Edington departed this life intestate, and defendant, Pare, was appointed administrator of his estate; that, at the time of his death, he was and had been a member of the partnership firm of W. H. Edington & Company, a firm composed of W. H. Edington and Thomas Hutchinson; that Hutchinson, as surviving partner, failed to give bond within thirty days, as required by law, and that thereby the administration of the partnership estate devolved upon defendant. Pare, who gave the bond required by statute for the administration of partnership estates (the bond in suit); that, after executing the bond, said Pare took charge and possession of the park nership estate. The petition then alleges that relator had a note against the partnership of Edington & Company, on which he instituted suit by attachment and attached the land of Edington; that Edington died, and that the suit was revived against defendant, Pare, as administrator of the partnership estate; that he recovered judgment against defendant as such administrator; that, afterwards, this judgment was exhibited in the probate court, which allowed and classified it in the fourth class of demands. In support of this petition relator offered in evidence the record of the circuit court covering the attachment suit, and that of the probate court covering [the allowance and classification. It appears from this record that the note was executed by the partnership of W. H. Edington & Company, and the suit was brought against them; that the suit was revived against defendant, Pare, “as administrator of said W. H. Edington’s estate.” The suit was dismissed as to Hutchinson. The court found that “ the said Edington, in his lifetime, was indebted to plaintiffs in the. sum of three hundred and forty-one dollars, debt and damages.” The judgment is then rendered against “M. Pare, as administrator of said W. H. Edington,” and declared to be a lien on Edington’s land attached, and it is ordered to be certified to the county court for classification qnd allowance “against the estate of the said W. H. Edington.”

From this statement it appears that the petition alleges, as a breach of the bond given for the administration of the partnership estate, the failure to pay a judgment rendered in the circuit court against the partnership estate, and allowed in the probate court against said estate, while the judgment offered in support of these allegations is a judgment against the individual estate. The court properly excluded the evidence, as it failed to sustain the petition.

The suit on the note was originally against the firm of W. H. Edington & Company, but was afterward dismissed as to Hutchinson and left standing against Edington individually. The revival was undoubtedly meant as a revival against the administrator of his individual estate, and the judgment was unquestionably rendered against the individual estate. The finding of the court shows such to be the case.

The judgment should be affirmed, and it is so ordered.

All. concur.