Mitchell v. Pyron

By the Court. StArnes, J. delivering the opinion. [1.] The same strictness, as to matters of service and pleading, which is required in cases at Common Law, is not observed in the Ecclesiastical Courts or in our Courts of Ordinary, which derives its practice, in this regard, from the Ecclesiastical Courts of England. Accordingly, service is perfected on kindred and creditors, in these Courts, by citation. (1 Bro. Civ. L. 453, 454. 4 Co. 29, a. 7 Co. 42, b. Bac. Abr. Tit. Ecc. C. (E.) Roll. Abr. S. 30.) [2.] It is not denied that the citation in this case was regular. If it were, and Pyron was a creditor, (as is alleged) he was sufficiently served, and must be regarded as a party to the proceeding. That he'was a creditor, may be said to be shown by the allegations which were not traversed; and which, for the purposes of this motion to dismiss, must be held to be ad mitted. Under these circumstances, he would certainly have been concluded by the appointment, if there had been no appeal. If so, he was a party to the proceeding, whether he made objection to the proceeding before the Ordinary or not, and had a right to appeal, within the time prescribed by law, if dissatisfied with the Ordinary’s decision in making the appointment. (1 Greenlf. Ev. 523.) Judgment affirmed.