November 13, 1923, the appellant and John Pounders executed and delivered to Lige Miller their promissory note for $500, due and payable on or before May 13, 1924. No payments are credited on the note.
May 3, 1929, Mrs. Lige Miller, for herself and as next friend for her three minor children, Annie Mae Miller, Rlottie Miller, and Lige Miller, Jr., brought suit in the *Page 917 circuit court of Arkansas County against C. E. McGraw, the appellant, to recover on said note. Lige Miller, the payee in said note, had been dead about two years. The appellant filed a demurrer, stating that there are not proper parties plaintiff, and that the complaint shows that the plaintiffs have no right to recover in this action against this defendant. The court overruled the demurrer, but permitted plaintiffs to amend their pleadings.
An amendment was filed more than five years after the cause of action accrued. Appellant filed a demurrer to amended complaint. In the amended complaint Mrs. Lige Miller sued as administratrix of the estate of Lige Miller, deceased, and as guardian of the minors and for the benefit of the estate.
As grounds of demurrer, the appellant stated: That the complaint does not state facts sufficient to constitute a cause of action against the defendant in the name of the plaintiff; that the complaint shows that the original party plaintiff had no cause of action against defendant; that said amended complaint shows that the party plaintiff had no cause of action against defendant in the original suit. Appellant further demurred, stating that there are not proper parties plaintiff to this cause, and because the complaint shows that plaintiffs have no right to recover against defendant.
The court overruled the demurrers; appellant saved his exceptions, and filed answer, pleading the statute of limitations. Appellant admitted giving the note, but testified that he had paid it to Miller before he died and before the note became due.
Appellant requested the court to give three instructions, which the court refused to give. Each instruction asked in effect directed a verdict for appellant.
It is undisputed that the first suit was filed before the cause of action was barred, and that the amendment was filed a few days more than five years after the cause of action accrued. It is the contention of the appellant that the amendment was the beginning of a new suit, and that it was barred by the statute of limitations. Attention is first called to the case of Lambert v. Tucker, *Page 918 83 Ark. 416, 104 S.W. 131. That, however, was a suit in replevin, and the court held that the title and right to possession of the property must be determined by the status at the time of the commencement of the action. The administrator was held to be the person entitled to sue, and Tucker and his wife brought suit, but the court stated they showed no demand nor any refusal to give up the property, and that Lambert, having come peacefully into the possession of the property, detained it as the representative of the sisters of Ohaver. This was a contest between the representative and the heirs, and the court held that the right to possession was in the representative.
The court also said that neither the widow nor the heirs could disturb the possession of the other. It is contended, however, that the appointment of an administrator is conclusive as to the necessity. This is only true on collateral attack. In the instant case there is no attack, collateral or otherwise. It is true that the court said in the above case that the action of the probate court in appointing am administrator is conclusive of the necessity to appoint, but the court cited the case of Stewart v. Smiley, 46 Ark. 373, where the court held that the appointment could not be collaterally attacked. The appointment of administrator, however, is not conclusive except on collateral attack. In the instant case, the court declined to sustain appellant's demurrer, holding in effect that the plaintiffs in the suit had an interest, but that it was proper to have an administrator and guardian parties.
The next case to which attention is called is Bertig v. Higgins, 89 Ark. 70, 115 S.W. 935. The court in that case, however, said that the grant of letters of administration was conclusive of the necessity of appointment, but not of the right to take possession of the property, and it was decided in that case that the administrator had no right to the possession of the property.
Appellant also calls attention to the case of Fencing District No. 6 of Woodruff County v. Mo. Pac. Rd. Co., *Page 919 180 Ark. 488, 21 S.W.2d 959. In that case it appeared that suit had been brought originally against the St. Louis, Iron Mountain Southern Railway Company, and the parties undertook to substitute for the sole defendant, the Missouri Pacific Railroad Company, a wholly different party. The first defendant had no interest whatever in the suit, and when a sole defendant or plaintiff is shown to have no interest in the suit, the substitution of another party, either plaintiff or defendant, for the sole plaintiff or defendant, would, of course, be the beginning of a new suit. The St. Louis, Iron Mountain Southern Railroad Company had no interest in the suit, and there was therefore no suit pending against any defendant who had any interest in the litigation.
The statute (Crawford Moses' Digest, 1089): "Provides, every action must be prosecuted in the name of the real party in interest, except as provided in 1091, 1092, 1094."
The widow and minor heirs, who were plaintiffs in the original suit, were the real parties in interest. Lige Miller had been dead about two years, according to the testimony, and the evidence does not show that there are any claims against his estate, or that he was indebted in any way. The fact that he was lending money is a circumstance tending to show that he was not indebted. However, there is no direct evidence as to whether the estate owed any debts or not, but the undisputed facts are that he had been dead about two years, and there is no showing that any person was claiming that he owed any debts, or that the property, including this note, did not belong to the widow and minor heirs; but, if he had been indebted, they still had an interest, and the amendment was not a substitution of a new party for the sole plaintiffs, but was the prosecution of the suit for the same parties in interest by their representatives.
In the case relied on by appellant, Irby v. Dowdy,139 Ark. 299, 213 S.W. 737, the court said: "Had the suit been instituted, in the first place, by any one as the next friend of Herbert Irby, it would have been within the discretion of the court to have substituted his natural *Page 920 guardian or any other person as next friend, for the next friend who had first brought the suit. * * * In the suit supposed, the infant would have been the real party in interest, and not the party who represented him, and the substitution of the natural guardian or another person as next friend would not have the effect of bringing a new cause of action." Buckley v. Collins, 119 Ark. 231,177 S.W. 220; St. L., I. M. S. R. Co. v. Haist, 71 Ark. 258,72 S.W. 893.
The amendment in the instant case was not the bringing of a new suit, and the cause of action was therefore not barred by the statute of limitations.
It is unnecessary to set out the evidence because the appellant admits the execution of the, note sued on, but he testified he had paid it by hauling logs for Miller during Miller's lifetime.
This court has repeatedly held that, where a party in interest testifies, his testimony is not to be regarded as undisputed. The question, however, as to whether he had paid the note, and the circumstances under which he claimed to have paid it, were questions of fact settled by the verdict of the jury against appellant, and the verdict is conclusive here.
The judgment of the circuit court is affirmed.
SMITH and HUMPHREYS, JJ., dissent.