Crutcher v. Williams , 217 S.W. 1115 ( 1919 )

The writ of error is from a judgment by default in favor of defendant in error, W. N. Williams, as executor of the will of Thos. A. St. Clair, deceased, against W. C. Crutcher for $1,593.25, as the sum due on a promissory note made by said Crutcher to said St. Clair during his lifetime, and against said Crutcher and his wife, Nora Crutcher, foreclosing the lien of a deed whereby they conveyed certain land to a trustee to secure the payment of said note. A reversal of the judgment is sought on the ground alone that the citation served on plaintiffs in error did not authorize it. The contention is predicated on the fact that the suit was described in the citation as one "wherein W. N. Williams is plaintiff." The argument is that a citation so describing the plaintiff did not authorize a judgment by default in favor of W. N. Williams as executor. Admitting, but not deciding, that the contention should be sustained if the excerpt above was all that appeared in the citation showing the capacity in which Williams sued, it will be overruled because we think it sufficiently appeared from other parts of the citation that the suit was by him as executor of St. Clair's will. Immediately following the statement in the citation that W. N. Williams was the plaintiff was the following:

"The nature of plaintiff's demand is as follows, to wit: `Your petitioner, W. N. Williams, executor of the estate of Thomas A. St. Clair, deceased, complaining of and against W. C. Crutcher and Nora Crutcher, would respectfully represent,' etc., copying in full the petition of the defendant in error."

Plaintiffs in error were fully advised by the citation that Williams was the plaintiff, that he was the executor of the will of Thomas A. St. Clair, deceased, and that his suit against them was on a note he claimed W. C. Crutcher had made to the testator and a mortgage he claimed said W. C. Crutcher and Nora Crutcher had made to said testator to secure the payment of the note.

The judgment is affirmed.