State ex rel. Longdon v. Shelby

75 Mo. 482

Opinion

I.

Sherwood, C. J.

The amendment to the petition, in the caption thereof, by substituting the words “ State upon relation and to use of Jno. Longdon, plaintiff',” instead of “John Longdon, plaintiff,” was properly admitted. Wellman v. Dismukes, 42 Mo. 104; State v. Sandusky, 46 Mo. 377; R. S. 1879, § 3567, and cases cited.

n.

Under the ruling of this court in State v. Modrell, 15 Mo. 421, there was no necessity for an order of the probate eourt for the payment of Longdon’s demand, as a condition precedent to bringing suit on the bond. It was sufficient to show assets ample in his hands to pay the claim and that he had refused to do' so. And this was especially the case, when in addition thereto, the petition also alleged that the claim of Longdon was the only one yet remaining unpaid.

III.

The second ground of the demurrer was equally valueless. The circuit court had jurisdiction. The probate court had none. This was a suit against “ living men,” and not a demand against the estate of a decedent. Therefore, the case of State v. Maulsby, 53 Mo. 500, applies, and, therefore, also, that of Dodson v. Scroggs, 47 Mo. 285, does not apply. State v. Stafford, 73 Mo. 658.

IV.

■ Longdon was the real party in interest; the claim had heen assigned to him ; and the suit was properly brought in the name of the State and upon his relation. We reverse the judgment and remand the cause.

All concur.