Baker v. Ormsby, 5 Ill. 325, 4 Scam. 325 (1843)

Dec. 1843 · Illinois Supreme Court

5 Ill. 325, 4 Scam. 325

Peter Baker v. Robert G. Ormsby, guardian, etc.

Appeal from Gallatin.

1. Guardian and ward — right of action. The record of a cause showed that a suit was commenced upon two promissory notes, before a justice of the peace, in the name of a guardian, but the record did not show whether the notes were made to the guardian or his wards: Held, that the reasonable presumption was that the notes were payable to the guardian, as such, and not to the wards ; and that if such was the case, he had an undoubted right to bring suit on the notes, in his own name, without stating for whom, or in what character he sued.

2. Same — pleading office. In such a note the word “ guardian ” is only descripiio persona, and not necessary to be proved, arid therefore cannot be put in issue by plea in abatement, ^(a)

This cause was heard in the Gallatin circtdt court at the May term, 1843, before the.Hon. Walter B. Scates, who rendered a judgment for the plaintiff for $77.88 and costs of suit. The defendant appealed to this court.

J. A. McDougall, for the appellant,

cited 3 Scam. 118; 15 Peters 1.

M. Y. Johnson, for the appellees,

cited 1 Chit. Plead. 262.

(a) Cases Citing Text. Administrator may sue in his own name, for breach of contract made with him as administrator. Laycock v. Oleson, 60 Ill. 30, 32; Newhall v. Turney, 14 Ill. 338.

Treat, Justice,

delivered the opinion of the court: This was an action instituted before a justice of the peace of Galla-tin county, in the name of “ Robert G. Ormsby, guardian '[*326] for Oliver, Sarah M., and Jane Ormsby,” against Peter Baker. The justice gave judgment in favor of Ormsby for $69.95. Baker prosecuted an appeal to the circuit court, and there pleaded in abatement, that Ormsby was not guardian by virtue of any law of this state. The court sustained a demurrer to the plea, and affirmed the judgment of the justice. Baker brings the case to this court by appeal, and assigns for error the decision of the circuit court sustaining the demurrer to the plea in abatement.

It appears from the transcript of the justice, that the action was brought on two promissory notes, but the notes are not copied, or otherwise referred to, in the record. From the silence of the record in this particular, and the peculiar manner in which the action was brought, the reasonable presumption, is, that the notes were made payable to Ormsby, in the style in which he sues, and not to the individuals described as his wards. If that was the case, he had an undoubted right to bring suit on the notes in his own name, without stating for whom, or in what character, he sued. The words guardian, etc., were merely descriptive of the person of the plaintiff; were not necessary to he proved, and therefore could not be put in issue by a plea in abatement. Buffum v. Chadwick, 8 Mass. 104; The King v. Box, 6 Taunt. 325.

The circuit court decided correctly in entertaining the demurrer, and its judgment is affirmed, with costs.

Judgment affirmed.