Saunders v. Stephenson

Decided March 15, 1909

Mississippi Supreme Court · decided 1909-03-15

From the circuit court of Marshall county. Hon. William: A. Roane, Judge. Mrs. Saunders, appellant, was plaintiff in the court below; Stephenson, executor, appellee, was defendant there. From a judgment in defendant’s favor plaintiff appealed to the supreme court. . The suit was upon a promissory note, alleged to have been executed in his life time by defendant’s intestate, payable to plaintiff.

Cited by 3 later decisions — most recently December 1936

3 state decisions

Relies on Cheairs' Executors v. Cheairs' Administrators · McWhorter v. Donald · Walker v. Nelson

Good law ✅— No negative treatment on recordhow we know

Decided 1909-03-15

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Fletcher, J.,

¶1delivered the opinion of the court.

¶2The affidavit, iipon which the note sued on was probated, was not made by the creditor, but by her husband as her agent. *678This brings the question squarely within the holding of this court in McWhorter v. Donald, 39 Miss. 779, 80 Am. Dec. 97. It is true that appellant here offers some excuse for not making the affidavit which the statute requires, and also triie that this ■ excuse was wanting in the McWhorter case; but the decision is that case is based upon the peremptory requirement of the statute, a departure from which is fatal. Cheairs v. Cheairs, 81 Miss. 662, 33 South. 414; Walker v. Nelson, 87 Miss. 268, 39 South. 809. Affirmed.