Opinion
Nos. 29,650, 29,697.
January 5, 1934.
Pleading — reply — striking as sham.
1. The municipal court acted upon a sufficient showing in striking a reply as sham and frivolous.
Executor and administrator — action against administrator — defenses.
2. A demurrer to an answer, in a suit against an administrator personally and his surety for the money assigned a widow in the final decree, was properly sustained where the answer admitted the assignment in the decree but sought to interpose as counterclaims alleged indebtedness to the estate.
Two actions in the municipal court of Minneapolis, Hennepin county, heard together on appeal, one by the administrator of the estate of David Haas, deceased, against the widow, to recover, on three causes of action, for rent collected by the widow belonging to the estate, for the conversion of a gas fire log belonging to the estate, and for overpayment to the widow on her allowance; and the other action by the widow to recover of the administrator and the surety on his bond for money assigned to her in the final decree. In the first case the court, Fred B. Wright, Jr., Judge, granted defendant's motion to strike plaintiff's reply as sham and frivolous, and plaintiff appealed (No. 29,697). In the second case, the court, Paul S. Carroll, Judge, sustained plaintiff's demurrer to the answer and counterclaim of the defendants, and defendant Saunderson appealed (No. 29,650). Orders affirmed.
B.H. Bowler, for R.A. Saunderson.
S. Louis Shore, for Annie Haas.
Two appeals from the municipal court of the city of Minneapolis. R.A. Saunderson, the administrator of the estate of David Haas, deceased, brought suit against the widow upon three causes of action, claiming in one that she had collected rent belonging to the estate, in another that she had converted a gas fire log belonging to the estate, and in the third that she had been overpaid by the administrator in the matter of her allowance. She interposed an answer setting up the presentation of all these matters to the probate court at the time that court had under consideration the administrator's final account and the decree of distribution and that all three matters were there adjudicated against the administrator. She also alleged that the administrator had appealed to the district court, which affirmed the decision of the probate court. The administrator interposed a reply in the nature of a general denial, which, upon motion properly supported by affidavits, the municipal court struck out as sham and frivolous and ordered judgment for the widow. The administrator has appealed.
In our opinion the municipal court had ample showing on the motion to justify it in striking out the reply and in ordering judgment for the defendant. The matters had been adjudicated in the probate court, and, if so, it is here conceded that its decision was binding as between these parties.
In the other case the widow sued the administrator personally together with the surety upon his administrator's bond for the money assigned to her in the final decree. The administrator sought to interpose as counterclaims the three causes of action to which we have referred above. The municipal court sustained a demurrer to the answer apparently upon the ground that the administrator could not set up claims due the estate in a suit brought against him personally upon the decree of distribution to the widow. The answer admitted the allowance of the account and the decree of distribution to the widow.
In this case we are also of the opinion that the municipal court was correct. Williams v. Davis, 18 Wis. 123; Cobb v. Kempton, 154 Mass. 266, 28 N.E. 264. The action lying against him personally, he obviously cannot set up an alleged debt to the estate. Nor can he prevail on his contention that plaintiff had not been damaged. The probate decree settled that.
The orders appealed from are affirmed.