Majority
p. 461Henry W. Steinhaeuser, Assignee, Resp’t, v. John Mason, App’lt.[1] (Court of Appeals, Filed October 11, 1892.)
Headnote
Appeal&emdash;Pasties&emdash;Substitution.This appeal was brought from a judgment in favor of plaintiff, as assignee, for the benefit of creditors of one M. On his death application, was made for the substitution of his wife as his executrix. Held, that as executrix she had no interest in the litigation and no right of substitution ; that to entitle her to substitution she should be substituted as assignee and application made to substitute her as such in this action.
Motion to substitute plaintiff’s wife as his executrix.
Franklin Bien, for app’lt; Abram Kling, for resp’t.
This is simply a motion to substitute Mary C. Steinhaeuser, as executrix of the will of plaintiff, in his stead. As executrix, so far as any facts now appear, she has no place in the litigation and no right of substitution. If she has been properly substituted as assignee in the place of her deceased husband, then she should make a motion to be substituted as such in this action, and so far as we can perceive there would be no answer to such a motion. The moving papers do not disclose the fact that she has been substituted as assignee. This motion must therefore be denied, but as she seems to have been thus substituted since notice of this motion, the denial is without costs.
All concur.