Saunders v. Stephenson
Mississippi Supreme Court
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.
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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. The affidavit upon which- its alleged probate was based was made by plaintiff’s husband and not by plaintiff herself. On the trial of the case in the court below, the introduction of the note in…
1Opinion of the CourtFletcher, J.
The 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.…
2Cases cited3 opinions
- Cheairs' Executors v. Cheairs' AdministratorsMississippi Supreme Court · 1902
- McWhorter v. DonaldMississippi Supreme Court · 1861
- Walker v. NelsonMississippi Supreme Court · 1905
3Cited by3 opinions
- Dakota National Bank v. KleinschmidtSouth Dakota Supreme Court · 1914
- Jennings v. Lowery BerryMississippi Supreme Court · 1927
- Bankston v. First Nat. Bank & Trust Co. of VicksburgMississippi Supreme Court · 1936