Willis v. Tozer

Citations

• 44 S.C. 1
• 21 S.E. 617
• 1895 S.C. LEXIS 62

Syllabus

<p>1. Actions on Judgment Quando Acoiderint. — After judgment against an administrator quando acoiderint, an action of debt on such judgment will lie against the administrator suggesting devastavit oí assets subsequently received.</p> <p>2. Desoriptio Personae — Surplusage.-—Where the assignee of a judgment in action on the judgment, describes herself in the caption as “executrix of,” &c., but makes no allegation in the compaint of her right to sue in a representative capacity, a demurrer to the complaint will not be sustained on the ground of such omission, as the words, “as executrix,” &c., in the caption may be stricken out as surplusage.</p> <p>3. Complaint — -Amendment.-—A demurrer to this complaint havingbeen sustained, on the ground that it did not allege that the funds subsequently received by defendant were applicable to plaintiff’s judgment, and had been wasted by defendant, there was no error on the part of the Circuit Judge in permitting the complaint to be amended.</p> <p>4. Point Not Decided Below- — Case Criticised. — An exception cannot be sustained, which charges error to the Circuit Judge in refusing to grant a motion in the cause, when the judge made no ruling on the motion. This case distinguished from Aultman v. Utsey, 41 S. 0., 305.</p> <p>5. Plene Administravit — Judgment Quando Acciderint — Res Judicata.— An administrator being sued, pleaded plene administravit, but in her plea made no statement of other outstanding claims against her intestate's estate, and judgment was entered against her for the debt to be paid “out.of any assets that may come into her hands to be administered.” In action of debt on this judgment, after other assets had been received, defendant cannot plead retainer for debts paid, and liabilities incurred by her before the former action, such liabilities having been also afterwards paid by her. The requisites of a plea oi plene administravit stated.</p> <p>6. Pacts — Conclusions of Law.' — An allegation in a complaint, th