Henkel v. Hood , 49 N.M. 45 ( 1945 )

The correctness of some of the conclusions stated in the foregoing opinion may be doubted. When the Legislature employed the phrase "personal representative" they meant executor or administrator of the estate of the deceased. The fact that the existence of beneficiaries other than the favored class specifically mentioned, or of creditors if the entire class of beneficiaries were exhausted, would be remote does not change the picture. The "personal representative" mentioned is the administrator or executor known to the laws of New Mexico, authorized to act in behalf of the law for the benefit of all concerned, however remote such interests might appear to be at the time of the appointment, under such safeguards of bond and other restrictions as by law provided.

It is to be doubted whether any kind of a foreign administrator was contemplated. Indeed, it may be doubted whether since the enactment of L. 1929 Ch. 145, providing for ancillary letters of administration, a foreign administrator not taking out ancillary letters here may sue.

It would be without present value to elaborate these suggestions.

I concur in the result, and am in the main brought to this conclusion by the principles that an objection based upon plaintiff's incapacity to sue should be taken advantage of by defendant at his first opportunity, and that ordinarily defendant admits plaintiff's capacity to sue when he pleads to the merits. 47 C.J., Parties § 345; 30 Am.Jur., Parties § 105 et seq. Cf. Salazar v. Garde, 37 N.M. 352, 23 P.2d 370; Thomas v. Pavletich,31 N.M. 76, 239 P. 862. I do not think these principles have been done away with by our rules of procedure.

The reason doubtless for the rule that the defendant must urge such an objection at his first opportunity is that the party in interest ought to have an early opportunity to correct the error, if any, in selecting a proper party plaintiff at an available time.

This cause of action arose upon the death of the deceased July 28, 1942; the original complaint was filed November 23, 1942; answer to the merits was filed December 28, 1942; thereafter such proceedings were had as resulted in amended complaint being filed May 28, 1943. Answer to amended complaint was filed June 3, 1943. By stipulation an amendment was made to the amended complaint August 9, 1943. Up to that time all of the pleadings were directed to the merits of the alleged cause of action. The motion to dismiss the plaintiff's complaint on the ground, among others, that the plaintiff was not authorized to sue was filed August 11, 1943, after, as suggested in the main opinion, the time for filing suit would have elapsed. It is my opinion that these delays by the defendant in raising the point that plaintiff was not authorized to sue amounted to a waiver, and if the parties in interest were prejudiced by the delay, as for instance, that it would be too late for them to select a proper party plaintiff, would amount to an estoppel. It would seem unjust to allow such a purely technical advantage to a dilatory defendant. These considerations and lack of prejudice to defendant aid me in yielding concurrence in the result.