Conway v. Carter

Citations

• 11 N.M. 419
• 68 P. 941

Syllabus

<p>SYLLABUS.</p> <p>1. Where a deceased administrator had in his lifetime, and as snch administrator, collected a life insurance policy, made payable by assignment to the executor, administrator or assigns of the deceased policy-holder, the beneficiary of the policy is the real party in interest and a suit may be brought in his name, under the code, against the sureties upon the administrator’s bond, to recover the proceeds collected upon the policy.</p> <p>2. Where the allegations of the complaint- are sufficient to warrant a recovery,- and the answer and cross-complaint of the defendant, surety, admits all the allegations of the complaint, except the allegation that the deceased administrator was insolvent at the time of his death, which was denied, it is not error for the court to render judgment for the plaintiff upon the pleadings upon plaintiff’s motion, the issue sought to be raised by the answer and cross-complaint being an immaterial issue.</p> <p>3. In such case, a cross-complaint by the defendant surety, alleging that deceased administrator died siezed of real estate, and praying that the court order the sale of the same, apply proceeds to payment of the debts of plaintiff and other creditors, and that suit on bond, be stayed pending such proceedings. Held, no bar to plaintiffs’ recovery upon the pleadings notwithstanding the cross-complaint.</p> <p>4. Errors assigned, upon proceedings in the court below, not objected to in that court will not be considered by this court.</p>