May v. Hanson

Decided July 1, 1856

California Supreme Court · decided 1856-07-01

This was an action against George M. Hanson, John C. Fall, and Samuel L. Dewey, administrator of the estate of B. B. Dewey, deceased, on an undertaking on appeal executed by G. M. Hanson, John C. Fall and B. B. Dewey. The complaint alleges the prosecution of the appeal in the action in which the bond was given, and final judgment against the appellant therein. It also avers the subsequent death of B. B. Dewey and the appointment of S. L. Dewey as his administrator.

Decided 1856-07-01

The opinion of the Court was delivered by Mr. Chief Justice Murray.

¶1Mr. Justice Heydenfeldt and Mr. Justice Terry concurred.

¶2The demurrer was properly sustained upon the second ground, because the administrator of Dewey ought not to have been joined.

¶3In actions upon joint and several contracts or obligations, an administrator cannot be joined with the survivor, because one is joined de bonis testatoris, and the other de bonis propriis. Humphreys v. Yale, 5 Cal. R.

¶4It is said the demurrer was sustained on a different ground in the Court below. It makes no difference, as this was one of the causes of demurrer assigned below.

¶5Judgment affirmed.