Empire State Chemical Co. v. Shubrick

1. A declaration in one of the short forms authorized by the Civil Code, against a named individual, alleging that he is the duly appointed administrator of a named decedent, that the defendant administrator is indebted to the petitioner on a promissory note in a stated sum, signed by the decedent, a copy of the note being attached, and further alleging that the “defendant administrator” is indebted to the petitioner in a stated sum on an open account for goods therein described which the decedent purchased from the petitioner, a copy of the account being attached, is a suit against the defendant, not individually, but in his representative character as administrator of the decedent. 2. The verdict being for the plaintiff against the defendant, naming the administrator, though it does not add descriptive words showing expressly that the verdict is against him as administrator, it will be construed to be against him in his representative capacity. 3. Judgment in favor of a creditor of an intestate against the administrator should be de bonis testatoris; but when it is not so drawn, it is amendable upon motion, and the execution based upon the judgment' is likewise amendable so as to make it conform to the judgment.

. Claim. Before Judge Walker. Wilkes superior court. November 6, 1917. The Empire Státe Chemical Company brought to the superior court of Wilkes county its suit upon a note and open account against Charles I. Reynolds, alleging: that the defendant is the duly appointed administrator of E. T. Shubrick, deceased; that the defendant administrator is indebted to petitioner on a promissory note in the sum of one hundred and eighty-one dollars principal, besides interest; that the note was made by E. T. Shubrick, deceased, May 10, 1915, to petitioners, and was due November 15, 1915, a copy of the note being attached to the petition; that the defendant administrator is also indebted to the petitioner on an account in the principal sum of two hundred and sixty-one dollars, besides interest; that the said Shubrick, deceased, purchased the goods described from petitioner, a copy of the account being attached; and that the defendant administrator fails and refuses to pay the said note and account. Wherefore petitioner prays that judgment be rendered against the defendant administrator for the said sum of money; that process issue, etc. To this petition was attached a copy of the note signed by E. T. Shubrick, and a copy of the account. Upon the trial of the case the jury returned a verdict “for the plaintiff, the Empire State Chemical Company, against the defendant, Charles I. Reynolds,” $261 principal and $120.26 interest.” Thereupon judgment was entered, that the plaintiff “do have and recover of the defendant, Charles I. Reynolds, administrator of the estate of E. T. Shubrick, deceased,” the sums just mentioned, with future interest and cost of suit. Upon this judgment a fi. fa. was issued in the usual form, commanding “that of the goods and chattels, lands and tenements, of Chas. I. Reynolds, administrator of E. T. Shubrick^” the sheriffs and deputies cause to be made the sums of money stated in the judgment, which, in the superior court on the- date of the judgment, the plaintiff “recovered against said Chas. I. Reynolds, administrator E. T. Shubrick,” etc. ' The execution was levied upon certain realty described, “as the property of Chas. I. Reynolds, Admr. Estate of E. T. Shubrick.” A claim was filed, and at the trial of the claim case the plaintiff in fi. fa. offered in evidence the execution. The claimant’s counsel objected to its admission, because it was an execution against Chas. I. Reynolds individually, and not against him as the administrator of the estate of E. T. Shubrick. Counsel for the plaintiff offered to amend the judgment by adding, after the words “costs of court,” the words, “to be levied of the goods and chattels, lands and tenements, of E. T. Shubrick, in the hands of Charles I. Reynolds, his administrator, to be administered;” and to amend the execution so as to make it conform to the judgment as amended. The court refused to allow the amendment, holding that the verdict was against Charles I. Reynolds in his individual capacity, and that the judgment and execution properly followed it; and then excluded the execution. The plaintiff in fi. fa. stating that he had no further evidence to offer, the court ordered the levy dismissed. The plaintiff excepted to" each of these rulings.