Sixta v. Heiser

Citations

• 14 S.D. 346
• 85 N.W. 598
• 1901 S.D. LEXIS 24

Syllabus

<p>1. Plaintiffs sued as heirs of B., because B’s executor refused to do so, to recover on a claim due the decedent, making his administrator a party defendant. Judgment was rendered for plaintiffs, and defendants appealed, the administrator being a surety on the bond. Judgment was affirmed and judgment on the undertaking directed the payment of the amount to the administrator. While the judgment remained in full force, the administrator died, and an administratrix of Ms estate was appointed, and also an administrator in the original estate. Comp. Laws, § 5791, provides that every claim presented to the administrator must be supported by the affidavit of a claimant. Held, that in an action by the heirs of the original decedent against the administratrix of the first administrator, the second administrator was a proper party plaintiff.</p> <p>2. Where judgment has been rendered in favor of the heirs of B. against one H, and after the death of H a claim therefor was presented to H’s administrator by one of the plaintiffs, a judgment for plaintiffs will not be reversed because the claim was not presented by the administrator instead of the heir, since the administrator was estopped by the judgment from presenting a second claim.</p>