Wiggins v. . McCormac

Smith, C. J. We agree with His Honor in ruling that the former terminated action between the administrator and guardian, involving the same subject matter, is an insuperable barrier to the prosecution of this, and this consequence is not averted by the association of the other persons as co-plaintiffs and co-defendants. Whatever can be recovered in this, could and ought to have been claimed and recovered in the other suit. The matter has become res ad judicata and further controversy closed by the previous decree unless *587 opened by a proceeding in the nature of a bill of review or the decree is impeached for fraud in its rendition. The complaint assigns no intrinsic error in the decree, alleges no newly discovered evidence, charges no fraud, but seeks to have the matters before decided re-opened and another administration account taken solely on the ground that the guardian, having made no annual returns, ought to have been and was not charged with the full amount for which she was liable in her administration of the trust. This is the purpose and scope of the present action. If the proceeds of the sale of the land retain the qualities and properties incident to real estate and could not be recovered by the administrator (to which proposition we do not wish to he understood as giving assent) for which reason the heirs have joined, then it is plain the administrator, as such, is not responsible therefor in the action against himself. He is only accountable for what he ought to have recovered and lost by the want of proper diligence and care. This neglect may be imputed in the management of the former suit, but this does not entitle him to the aid of the court in reversing what was then adjudged and neutralizing the results. That the objection may be taken by demurrer, -when the substantial facts are set out in the complaint, is expressly decided in Davis v. Hall, 4 Jones Eq., 403, from the opinion in which, as appropriate to the present case, w'e quote an extract: “ This is not a bill of review ; not alleging any error of law or fact in the decree. Nor does the.bill allege any fraud in obtaining the decree, nor otherwise impeach it, except in the single particular that the allegation in the former bill that the fund with v'hieh the slaves were purchased belonged entirely to Carter, and the consequence deduced therefrom that in the view of this court Carter was entitled to all the slaves. * * * * No reason indeed is given, why the question now made was not presented in the former suit, nor any allegation that it was not made and *588 proof taken on it. * * * Litigation would be interminable, if, after a decree founded on the allegations and proofs in that cause, the party could, upon an original bill, obtain a decree on the same matter in opposition to the first decree simply upon the ground that the titles of the parties were different from what they were before declared, at the same time not imputing any undue practices in obtaining the decree.” We therefore uphold the ruling of His Honor and sustain the demurrer. The action must be dismissed and it is so ordered. No error. Affirmed.