Geary v. Simmons

Pbactice.—Action against Adhinistbatob.—Judgment Boll.—Evidence of Pbiob Suit.—In an action against an administrator de bonis non, the judgment roll in a former suit by the same plaintiff, for the same cause of action, against a prior administrator, is competent and conclusive evidence of the institution of said former suit. Idem.—Allegations in a Fobmeb Suit—Admissibility as Evidence.—Material allegations of the complaint in a suit against a prior administrator must be taken as admissions of the truth of the matters so alleged against the same plaintiff in a subsequent action against the administrator de bonis non of the same estate, for the same cause of action, and will be binding and conclusive upon him in the absence of any evidence tending to establish that such allegations were made by mistake or under a misapprehension of the real facts. Idem.—Nonsuit.—A Court is justified in granting defendant’s motion for non-suit, after the evidence on both sides has been heard, in a case where, if the motion had been denied and a verdict found for plaintiff, it would have been set aside as not supported by, but contrary to, the evidence.

Appeal from the District Court of the Fourth District, City and County of San Francisco. This is an action brought against A. Hollub, administrator of the estate of Bezer Simmons, deceased, in which Orrin Simmons was substituted as defendant, he having succeeded said Hollub as administrator. The complaint was filed on the 16th of September, 1869, and was for the recovery of the sum of $62,000, with interest at the rate of five per cent, per month from the 11th day of August, 1850, due on a promissory note, of which the folknving is a copy: “$62,000. San Fbancisco, Aug. 11th, 1850. "For value received, we promise to pay to John W. Geary, or order, sixty-two thousand dollars, on demand, with interest at five per cent, per month. “Simmons, Hutchinson & Co.” Indorsed as follows: “I guarantee the payment of the above note. “B. Simmons.” The case was tried before a jury on the 7th day of January, 1870, and, after plaintiff had closed his testimony, defendant offered, among other evidence, the judgment roll in a suit commenced by the said John W. Geary, in the Fourth. District Court of the County of San Francisco, on the 11th day of August, 1851, against Frederick Billings, administrator of the estate of Bezer Simmons, deceased. The complaint in which case, after setting forth the cause of action, which was the same as that set forth in the present suit, concludes as follows: And the said plaintiff further says, that after the giving of the said last mentioned note, and the said guarantee, the said Bezer Simmons departed this life intestate; and after-wards, to wit: on the first day of March, A. D. one thousand eight hundred and fifty-one, administration of the estate of said Bezer Simmons was granted to the defendant, Billings, and letters of administration, whereby he was appointed administrator of the said estate, were duly issued to him by the Probate Court of the County of San Francisco. And the plaintiff further says, that after the giving of the last mentioned note and guaranty, and prior to the decease of the said Bezer Simmons, the said firm of Hutchinson & Co. became insolvent, and that all the surviving members of said firm are insolvent, both as members of said firm and in their individual estate, and that said last mentioned promissory note remains unpaid, and the same is wholly due. And plaintiff says that he has a claim against the estate of Bezer Simmons for the sum of $62,000, the amount of said last mentioned note, with interest thereon at the rate of five percent. per month from the 11th day of August, 1850, the date thereof; and that after the appointment of the said Frederick Billings as administrator of said estate, to wit: on the 7th day of August, 1851, the plaintiff presented and exhibited his said claim, with the necessary vouchers, to the defendant, administrator as aforesaid, for allowance, pursuant to the statute entitled “An Act to regulate the settlement of the estates of deceased persons, ” and that said claim was rejected by said administrator. Plaintiff’s counsel here inquired of the defendant’s counsel the purpose for which said judgment roll was offered; to which defendant’s counsel replied that he offered it for the purpose of proving the issuance of letters of administration to Frederick Billings, the presentation - of the claim, the rejection of it, suit brought upon it, and that the suit was finally dismissed. Plaintiff’s counsel then objected to the offer in evidence of said judgment roll, on the ground that the same was not the best evidence of said presentation of claim, nor of the issuance of letters to Billings; that the statements in the complaint in said action were merely the admissions of the attorney therein, and were not admissible in any other action than that in which the admission was made; and that there was no evidence of issuance of letters to Billings, or of the presentation of plaintiff’s claim to him. Which objections being overruled by the Court, plaintiff excepted. After the testimony on both sides was closed, defendant’s counsel moved for a judgment of nonsuit, which motion was granted by the Court, and judgment entered for defendant; from which judgment plaintiff appealed.