Bright v. Ecker

Citations

• 9 S.D. 192
• 68 N.W. 326
• 1896 S.D. LEXIS 136

Syllabus

<p>1. Where parties have been cited to appear before the county court for examination touching an administrator’s complaint that they have converted the assets of his intestate’s estate, the court’s citation and order directing them to deliver the assets to the administrator are madq prima facie evidence, by Comp. Laws, Sec. 5776, of the administrator’s right to recover the property, and hence are competent evidence to charge defendants in a subsequent action by the administrator for the value of the assets.</p> <p>2. Though a complaint contain redundant matter and allegations relating to more than one cause of action, where no attack was made on it in the court below, the appellate court will sustain the pleading if sufficient facts can be found to constitute any cause of action.</p> <p>3. Where an administrator sues in behalf of creditors to recover a gift made by his intestate in view of death, it sufficiently appears that there are creditors interested in having- the property recovered where it is alleged that there are outstanding and unpaid claims, which have been duly presented, allowed by the administrator, and approved by the county judge, and that there is no property other than that in possession of defendants out of which they can be satisfied.</p> <p>4. Under Comp. Laws, Sec. 5795, which provides that claims against an estate “allowed by the executor or administrator, and approved by the judge,” etc, shall be filed in the county court, the appropriate phrase, in an action to recover assets, to show that there are acknowledged debts against an estate, is that the claims have been “approved” by the county judge.</p> <p>5. Where the appeal is only from an order denying a motion for a new trial on finding for appellant, the cause will be reversed, and not be rerpanded with directions to enter judgment for appellant.</p>