Graham v. . Tate

Pearson, C. J. It is irregular and against the course of the Court to enter a verdict, unless the plaintiff be present either in person or by his attorney. This proposition is fully established by the authorities cited by Mr. Jones, and is recognized in all the books as a general rule to which very few exceptions are made. So that, a plaintiff can at any time before verdict withdi-aw his suit, or, as it is termed, “take a nonsuit ” by absenting himself at the trial term. If ' he does so and fails'to answer when called, by himself or by his attorney, the Court directs a nonsuit to be entered ; the ■ cost is taxed against him, and that is an end of the case.. Even when the plaintiff appears at the trial, takes a part in. it by challenging jurors, examining and cross-examining witnesses, and the argument of his counsel, if he finds from an intimation of the Court that the charge will be against him, he may submit to a nonsuit and appeal. This is every day’s practice. It is based upon the idea that the plaintiff an- ■ nounces his purpose not to answer when called to hear the verdict, and the advantage is, that the plaintiff’ can have-Ilis Honor’s opinion reviewed, and should the decision of the Supreme Court be against him, he can commence another action ; whereas if he allows a verdict to be entered, it is conclusive unless set aside. Nay, according to the course of’ the Court the plaintiff is at liberty to take a nonsuit by an- ■ nouncing his purpose to absent himself even after the J udge has charged the jury and their verdict is made up; provided he does so before the verdict is made known. In our case, the plaintiff having commenced an action in. the Federal Court and voluntarily absented himself at the-trial term had a right to suppose that a nonsuit would be ■ entered. The verdict and judgment entered in his absence' are irregular and void. We must say that ■ the conduct of' *124 -the defendant, in taking a ve'rdict and judgment which,'if ■not set aside and vacated, would conclude the plaintiff’s ■right of action in the absence of the plaintiff and his counsel, 'has much the appearance of “sharp practice.” Mr Bailey, ¡admitting the general rule in an ordinary action at law, attempted to take this case out of its operation by assuming the position that the statute, (Bat. Rev. ch. 45.) “Executors and Administrators,” provides a special proceeding similar to the old practice of issues sent by the Chancellor to be tried by a jury in a Court of Law, for “the enlightenment of ■the Chancellor’s conscience in which case the plaintiff was mot allowed to disappoint the purpose of the Chancellor by .■absenting himself from the trial. This involves the con- ■ struction of the statute. The’ proceeding is under § 73, by two of the creditors, named, and all other creditors of the deceased to compel the personal representative to an account of his administration, and to pay the creditors what may be payable to them respectively. Osborne’s debt was denied, and he filed a complaint under § 82 ; “The creditor shall thereupon file in the ■office of the Clerk a complaint founded on his said claim, and the pleadings shall be as in other cases.” An issue of fact "being raised, the Clerk sent it up to the Superior Court for ■trial under § 83. -The debts of Mrs. Graham and Miss ■Cameron, the two creditors who instituted the proceeding, ■being also disputed, they severally filed complaints, and the •issues of fact were in like manner sent .up to the Superior ■Court for trial. The question is ; Are the issues sent up to the Superior -Court to be tried for the enlightenment of the conscience of the Judge of Probate ? Or does the complaint of the several-creditors constitute a distinct proceeding for the purpose of .-.ascertaining their respective debts, to be proceeded in separately so as to “let each tub stand on its own bottom?” We think it clear the latter is the proper construction of' *125 the statute. And although when issues are sent up, the title-should be in the name of the creditors who instituted the special proceeding against the personal representative in. order to show the original proceeding, of' which the complaint of the particular, creditor is a branch, it is proper to-make a further title, setting out the name of the. creditor,, upon whose complaint and the answer thereto, the issues are-raised. Eor instance, in this case the title should be, “Graham & Cameron v. Tate, executor. Issues on the complaint of Osborne.” “Graham & Cameron v. Tate, executoi'. Issues-on the complaint of Graham.” “Graham'& Cameron v. Tate, executor. Issues on the complaint of Cameron.” In this-mode the complaint of the several creditors will be kept-separate, and confusion avoided. The purpose of the statute was to unite all the creditors* in one special proceeding, in order to bring the personal, representative to an account after two years, and to' compel, an application of the assets by payment to the creditors-whose debts have been ascertained. The debts may be ascertained before the special proceeding is commenced in one of three modes ; (1) by admission of' the personal representative; (2) by reference, under § 50; and (3) by action for the recovery thereof, under § 51. Eut the action merely ascertains the debt, and no execution can issue on the judgment, § 133. Where a debt has not been ascertained before the special proceeding is commenced by a creditor for ah account and distribution of the assets, provision is mdcle- for its ascertainment by § § 82, 83, which in effect gives an action of debt to be proceeded in as therein prescribed, pending the special proceeding by all the creditors. The statute is very long — 168, sections, 25 pages — and contains many details, but .we have given" an exposition ©f its-main provisions. The result is that the verdict and judgment entered by His Honor, Judge Cloud, was irregular. *126 The verdict ought to have been set aside and the judgment ■vacated. Per Curiam. Judgment affirmed.