Hamilton, Executor v. Ewing

*Hamilton, Executor v. Ewing. PLEADING.—A suit in a justice’s Court was entitled, “ Allen Hamilton, Execu tor of James Wilcox v. Charles W. Ewing. Debt. Demand, $34.” And 8 promissory note given by the defendant to James Wilcox for $30, was filed as the cause of action. Held, that the cause of action was insufficient. ERROR to the Allen Circuit Court. Coldron v. Rhode, 7 Ind., 151. [MAJORITY — Dewey, J.] Dewey, J. This was an action of debt commenced before a justice of the peace, and taken by appeal to the Circuit Court. The action is entitled on the justice’s transcript, " Allen Hamilton, Executor of James Wilcox v. Charles W. Ewing. Debt. Demand, $34.” The cause of action was a promissory note by which the defendant promised to pay one James Wilcox $30. The defendant moved the Circuit Court to clismiss the suit for want of a sufficient cause of action, which was done. T. Johnson, for the plaintiff. C. Fletcher, 0. Butler, and 8. Yandes, for the defendant. We think this decision was right. There is nothing in the record to show the connection of the plaintiff with the cause of action. The mere description of his person as the executor of Wilcox is not enough for that purpose. He might, notwithstanding, have maintained, an action on a promise made to himself individually. There should have been an averment to show his interest in the note. Vandagrift v. Tate et ux., 4 Blackf., 174. Per Curiam.—The judgment is affirmed with costs.