Steinhaeuser v. Mason — 4 Silv. Ct. App. 619

Majority

p. 619

Henry W. Steinhaeuser, as Assignee, etc., Respondent, v. John Mason, Appellant.

Court of Appeals,

October 11, 1892.

Headnote

Parties. Substitution.—The executor of an assignee for the benefit of creditors is not entitled to be substituted as plaintiff in an action brought by the deceased as such assignee, unless such executors has been substituted as assignee.

Motion to substitute plaintiff’s wife as his executrix.

Franklin Bien, for appellant.

Abram Kling, for respondent.

—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.