Vermont Marble Co. v. Black

Plaintiff brought its action against William Black to recover on four promissory notes executed by the latter. Upon May 31, 1893, judgment by default was given against defendant, and execution was issued and a levy made. William Black died on June 5, 1893, and on July 7, 1893, defendant was duly appointed administratrix of his estate, qualifying upon July 10, 1893. On the fourteenth day of the same month she was substituted as defendant in this action. On July 28, 1893, she moved the court to vacate the default judgment. Upon denial of her motion she appealed, and this court reversed the order of the trial court. (Vermont Marble Co. v. Black, 38 Pac. Rep. 512 .) After the going down of the remittitur the lower court on defendant’s motion vacated the default and permitted her to answer upon terms. Meanwhile, upon November 1, 1893, the sheriff had sold certain property of the estate under his execution levy. The moneys received from the sale were paid into court to await the final determination of the action.

At the trial, after plaintiff had introduced its evidence, defendant moved for a nonsuit upon the ground that plaintiff had not proved the presentation of a claim for its…