Matlock v. Powell

Worden, J.

Powell, as executor of Lee, sued Matlock before a justice of the peace, for money, had and received. Matlock appeared to the action, and, on judgment being rendered against him, appealed to the Court of Common Pleas, where the cause was tried by the Court, who found for the plaintiff, and rendered judgment on the finding, overruling a motion for a new trial.

Matlock appeals to this Court, and has assigned nine errors in the proceedings below, the second, third, fifth, and sixth of which relate to the sufficiency of the evidence to sustain the finding, and they will be no further noticed, no error being assigned upon the decision of the Court in overruling the motion for a new trial. The eighth and ninth are, that the judgment is .not sustained by the evidence ; and that the judgment was rendered for the plaintiff, whereas if should have been rendered for the defendant. These assignments present no question for determination here.

The remaining errors assigned are as follows:

1. “ That said Putnam Court of Common Pleas had no jurisdiction of said Matlock, defendant below, he being a resident of the county of Hendricks, and this suit having been commenced in the justice of the peace Court.”

4. “That the Court erred in permitting the record of the letters testamentary and their authentication to be read in evidence, the same not being duly and legally certified to be in due form.”

7. “That the said executor, being a foreign executor, had no authority to sue in the Courts of Indiana.”

It appears by the bill of exceptions, that Matlock, at the time the suit was commenced, was a resident of the county *379 of Hendricks, and not of the county of Putnam, in which the suit was commenced, and where the cause of action accrued. It also appears by the justice’s transcript, that process was duly served upon him, and that he appeared to the action without making any objection to the jurisdiction. Indeed, no objection of the kind appears to have been made, either before the justice or in the Common Pleas. But had the objection been made, it could not have prevailed, as was settled in the case of Maxioell v. Collins, 8 Ind. R. 38.

The plaintiff sued as a foreign executor, appointed by the Probate Court of Tuscaloosa county, in the state of Alabama, and the objection to the authentication of his letters testamentary is, that such authentication is not strictly in accordance with the act of congress, or § 286 of the code, on the subject of the attestation of records of judicial proceedings of other states. There being no plea filed under oath denying the plaintiff’s representative capacity, under the provisions of §§ 152 and 159 of the statute on the subject of executors and administrators (2 R. S. pp. 283, 284), it was not necessary that the letters testamentary should have been offered in evidence at all.

Section 152 provides that “it shall not be necessary for such executor or administrator (resident) to make proferí of his letters, nor shall his right to sue as such executor or administrator be questioned, unless the opposite party shall file a plea denying such right, with his affidavit to the truth thereof thereunto attached.”

The 159th section provides that “ A non-resident executor or administrator, duly appointed in any other state or country, may commence and prosecute any suit in any Court of this state, in his capacity of executor or administrator, in like manner and under like restrictions as a resident.”

Under these provisions, a foreign executor or administrator, as well as a resident, may sue, and unless his authority be denied under oath as provided for, his capacity and right to sue are admitted, and he need offer in evidence on the trial no proof of his appointment. Hence, it is wholly *380 immaterial whether the objection to the letters offered in evidence was well taken or otherwise.

A. Daggy, for the appellant.

The seventh assignment of error is disposed of by reference to the section of the statute above quoted, authorizing foreign executors and administrators to sue in the Courts of this state.

Per Curiam.

The judgment is affirmed with costs.