Hoggatt v. Montgomery et al., 6 Howard 93

Mr: Chief Justice Sharkey delivered the opinion of the court. This action was brought on an administrator’s bond against Lewis Miller and Nathaniel Hoggatt, Miller being the principal and Hoggatt the surety. An averment of assets and suggestion of devastavit is made, and the breach is that the defendants in error had recovered a judgment against Miller as administrator, which he had failed and refused to pay.

To the declaration there was a demurrer with special causes, which was overruled, and the defendant Hoggatt (the suit having been discontinued as to Miller,) failing to plead, a default was taken and writ of inquiry awarded.

The first ground taken for reversing the judgment is, that the court efred in overruling the demurrer, in disposing of which each particular cause of demurrer will be considered; the first of which is, that “it is not averred or shown in said declaration, what particular goods and chattels and credits of the deceased came to the hands or possession of said Miller, as administrator, to be administered; nor is it shewn in said declaration what goods and chattels and credits were not administered hy said Miller.” The answer to this is, that it is never necessary to state in such a declaration as this the particular kind or quantity of chattels which came to the hands of the administrator.

That is a fact which is best known by him. It is enough to aver that goods and chattels sufficient to pay the debt came to the hands of the administrator, and that he wasted and converted the same to his own use. 13 J. Rep. 437. There can be no reason for requiring more than this, as it will not be required of the plaintiff to prove every

article of property that was received; it will be enough to prove that sufficient assets came to his hands. It is averred in the declaration that goods chattels and credits of the value of five thousand dollars came to the hands of Miller, and yet that he failed to pay the judgment, which was for two hundred and eighty nine dollars and fifty cents, and this is sufficient.

The second cause of demurrer is, that “It is not averred, stated or shown in said declaration, that money, goods, chattels or credits came to the possession of said administrator, or assets of said estate sufficient to pay and satisfy said claim of Montgomery and Mitchell.

It is usual in cases of this kind to aver that a sufficient amount of goods came to the hands of the administrator to pay the debt, and this may be done without stating the value; but the plaintiff has stated that which is equivalent, he avers that goods to the value of $5000 came to the hands of Miller, and he only claims to recover $289 5Q, and surely it was not necessary for him to aver that $5000 was sufficient to pay this small sum. The word sufficient superadded to this averment, would have been entirely superfluous.

The substance of the third cause of demurrer is, that the declaration does not contain an averment that the judgment of Montgomery and Mitchell remained unpaid at the commencement of the suit, nor does it aver that the intestate in his lifetime was indebted to Montgomery and Mitchell. This is not true in point of fact.

The breach avers the issuance of a fieri facias on the judgment, and a return oí nulla bona, and the declaration concludes in these words, to wit; “and so said plaintiff avers that by reason of the premises, and said judgment remaining unpaid and unreversed, said condition of said writing obligatory has become absolute,” &c. The declaration also expressly avers that the judgment was recovered against Miller for a debt due by his intestate in his lifetime to Montgomery and Mitchell. Neither of the causes assigned were therefore good causes of demurrer, and the court correctly overruled it.

At the execution of the writ of inquiry the defendant appeared and objected to the admissibility of the judgment as evidence, but it was permitted to go to the jury. It will not be necessary here to go into the objections made to the judgment as a matter of evidence, as the defendant moved for a new trial and amongst other reasons, assigned the admission of the judgment as one. The reasons on which the new trial was asked are, in substance, as follows; First. The court erred in overruling the demurrer. Second. The court erred in permitting the record of the judgment in favor of Mitchell and Montgomery v.

Lewis Miller, administrator, to be read to the jury. Third. The court erred in permitting the execution to go in evidence. Fourth. There was no evidence of a devastavit, or that any estate ever came to the hands of Miller. The motion was overruled, and a bill of exceptions tqken, which sets out the evidence. The first ground taken for a new trial has been disposed of, and we shall proceed to consider the second. The judgment offered in evidence was a judgment of the same court in which the cause was tried, and the record of the judgment was produced.

A default had been taken against Miller, and a writ of inquiry had been awarded, but the jury rendered their verdict as though an issue had been submitted, and the court, in rendering judgment, rendered it against the defendant generally, omitting the words “as administrator.” When the objection was taken, the plaintiffs below moved to amend the judgment, to make it correspond to the declaration and process, which were against Miller as administrator of Hankinson, and the court permitted the amendment to be made, both in the form of the verdict and judgment. Was this proper or not?

The error in entering the verdict was evidently a mere clerical mistake. It is sufficient if a verdict be substantially good; it may then be moulded into proper form by the court. Montgomery v. Tillotson, 1 How. 215. The verdict was substantially good, even without the amendment. And so as to the judgment, whether it was amendable or not; the record sufficiently showed the nature of the demand to entitle the whole to be read. It was only introduced for the purpose of showing a debt, and the verdict alone would have done this.

No particular objection is urged against the execution; the objection is general, and if the verdict and judgment were evidence of a debt, surely the return of the sheriff was proper to show that a devastavit was committed, after proof of assets, and this is an answer to the last reason for a new trial, except that part of it which alleges that there was no proof of assets. Was this necessary?

Under a different state of pleading it would have been incumbent on the plaintiff to have shown assets, and we have been the less particular in examining the several grounds for a new trial, because we think the case properly considered could not have given rise to any such questions. This action is against Miller, and Hoggatt, as his security in the bond. The suit was discontinued as to Miller, and Hoggatt became the only defendant, and he demurred to the declaration. The bond was mere inducement to the action. The devastavit was the gist of the action.

The defendant, by demurring, admitted every thing that was well pleaded. Now, what does the declaration contain? First — it avers that sufficient assets came to the hands of the administrator; this the demurrer admits. Second — that the administrator wasted the assets; this, also, is admitted. Third — that the plaintiffs below had recovered judgment for two hundred and eighty-nine dollars and fifty cents against the administrator, on a debt due them by the intestate in his life time, which remains unsatisfied; and this, too, is admitted by the' demurrer. These things being admitted, what remained to be proven?

Nothing. The right of action became evident. Where was the necessity for a writ of inquiry? There was none. The debt was a matter of record, certain in amount, and admitted to be just and unpaid, and the court had nothing to do but to direct the clerk to calculate the interest. The assessment of damages was therefore unnecessary; and suppose the judgment should be reversed, and the cause remanded, what would be the correct course of the court below? It would be to calculate the interest and enter the judgment. Would it then avail the defendant anything to have it sent back? It would not.

He has admitted every thing, and on his admissions a judgment would necessarily be entered against him for the same amount. He is therefore not prejudiced by the judgment. But further — suppose we were to reverse the judgment, would we not be bound to enter such judgment as the court below should have entered? The record would undoubtedly justify this course. For these reasons we think the judgment should be affirmed.