Moss v. Witcher ( 1872 )

Ogden, J.

This suit was instituted by appellee against appellants, on a promissory note, payable to A. M. Witcher, administrator, etc. The defendants filed a general demurrer, and an answer in the nature of a plea in abatement. And on motion of the plaintiff below, that answer was stricken out, and the cause was submitted to a jury, and verdict and judgment were rendered for the plaintiff; and the defendants have prosecuted a writ of error. That this suit was properly brought by the appellee, under the authority of Butler v. Robertson, 11 Texas, 142, and Claiborne v. Yeoman, 15 Texas, 44, cannot, we think, be doubted. Under the pleadings it was entirely immaterial whether appellee was really administrator, as stated in the note, or not, as the note was made payable to him; and it was not for the appellants to question his right to sue, and especially as their plea was not sworn to. We are therefore of the opinion that the court did not err in striking-out the plea.

Appellee suggests that this cause was brought here for delay, and asks that the judgment be affirmed with damages; but though this looks very much like a delay case, yet we hesitate'to assess damages, as it maybe possible that the appeal has been made in good faith. The judgment is therefore affirmed, without damages.

. A.ee trued.