Wise v. Brocker , 1 Colo. 550 ( 1872 )

Per Curiam.

Franz A. Brocker obtained a decree foreclosing a mortgage given by plaintiffs in error, and defendant in error is summoned as executrix of his will and sole devisee of his estate. As plaintiffs in error were parties to the decree, and directly affected by it, of course they may prosecute this writ; but it is said that Franz A. Brocker is dead, and we have no evidence that defendant in error is executrix as charged. If it were necessary to furnish evidence of the death of the person against whose estate relief is sought, and of the appointment of an executor or administrator of the estate, before suing the representative, there would be some force in the objection. This is a new suit and defendant in error is charged as executrix of an estate. If she is not the representative of the estate she may plead the fact in abatement, but we cannot assume the fact upon motion to dismiss. If there is no further appearance by defendant, probably we shall require evidence of the death of Franz A. Brocker, and of the appointment of defendant as executrix, in order that we may know that the proper party has been summoned, but we cannot dismiss the writ upon motion.

Motion denied.