Rasmussen v. Jensen ( 1942 )

Action brought by Robert M. Rasmussen against the defendants, Chris A. Jensen, administrator of the estate of Matt A. Rasmussen, deceased, and the surety on the administrator's bond, to recover from them the amount owing to Lillian M. Rasmussen, as the assignee and owner of a judgment against said deceased and the above-named plaintiff, Robert M. Rasmussen. The facts alleged in the complaint herein in relation to that judgment, the ownership thereof, and the parties liable thereunder and the basis of their liability, and in relation to the defendants herein are the same as the facts alleged in the complaint in the companion case of Rasmussen v. Jensen,ante, p. 242, 3 N.W.2d 335. Defendants herein likewise demurred to the complaint on the ground that the facts alleged are insufficient to state a cause of action. The court sustained the demurrer and entered judgment dismissing the complaint. Plaintiff appealed. As this action is brought to recover judgment against the same defendants upon virtually the same alleged factual basis for an amount to be paid to Lillian Rasmussen, which she seeks as plaintiff to recover from the same defendants in the companion case, above mentioned, and as the facts alleged in her complaint are insufficient to state a cause of action, they are likewise insufficient to state a cause of action in this case. Moreover, there are no facts alleged to show that Robert A. Rasmussen would be entitled to any relief herein even if there had been sufficient facts stated otherwise to constitute a cause of action in favor of Lillian Rasmussen. She had the status and rights of a creditor of the estate of the deceased, Matt A. Rasmussen, but the plaintiff, Robert M. Rasmussen, as the indorser or comaker of the note and a party against whom judgment thereon was also entered, but who had not made any payment thereon or acquired any interest therein, has no right whatever as such comaker, indorser, or joint judgment debtor against the estate of Matt A. Rasmussen or the administrator thereof by reason of which the plaintiff can be held to have been damaged by Jensen's acts or conduct as administrator.

By the Court. — Judgment affirmed.