Malone v. Kelly

Fish, J. Mrs. Malone brought an action of complaint for land against Eden EL Kelly Jr. Pending the suit Eden S. Kelly was made a party defendant, and upon his death C. H. Kelly, his administrator, was made a party. Upon the trial of the case there was a verdict for the defendants; and upon plaintiff’s motion for a new trial being overruled, she excepted. To the petition plaintiff filed an amendment, which is set out in the reporter’s statement. The amendment was dismissed upon demurrer, and exceptions pendente lite filed by the plaintiff; and one of the rulings that we are to pass upon is the dismissal of this amendment. The only relief prayed for in the amendment was the cancellation of the deed which the amendment alleges Jarrett B. Kelly, as administrator of John C. Kelly made to Eden EE. Kelly Sr., the vendor of Eden BE. Kelly, Jr.; and the setting aside of two judgments of the superior court, one founded upon the award of the arbitrators in the matter submitted by Jarrett B. Kelly, administrator of John C. Kelly, and Eden BE. Kelly Sr., and the other upon the report of the commissioners in the partition proceedings between the same parties, which judgments were relied on by the defendant, Eden BE. Kelly Jr., as establishing his defense. Jarrett B. Kelly who, as administrator, the amendment alleges executed the deed which it attacks, and who was also a party to both of the judgments sought to be set aside, was not a party to this suit, nor is it clear that Eden BE.. Kelly Sr. was a party thereto. Therefore, if the amendment had been otherwise appropriate and allowable, there was no error in rejecting it. This is true for the reason that Jarrett B. Kelly was not a party to the action, and was not sought to be made one by the proposed amendment. The court could not undertake to cancel, a written instrument conveying title [201] "to property, without having before it all the parties to be affected by the proposed cancellation. The judgments which are attacked in the amendment must be taken and held as valid until set aside, and they can not be set aside without making proper parties. Civil Code, § § 5367, 5368. The following appears in the record: “It is admitted that Jarrett B. Kelly was the administrator of J. C. Kelly and guardian of his minor children, and-was duly dismissed as such.” These children being coheirs with the plaintiff, and it nowhere appearing how many of such children there were, nor whether they or any of them are in life, the plaintiff could not recover the whole of, nor any fractional interest in, the premises in dispute, even if she showed title in her husband. She could not recover the whole of the land, unless she proved that she was the sole heir at law of her husband; and if she was not the sole heir at law, she could not recover any fractional interest, unless she proved what the amount of such interest was, by showing the number of the heirs at law. Where, therefore, under the evidence there could be no lawful recovery by the plaintiff, and a verdict was rendered for the defendants, even if the court admitted, in behalf of the latter, evidence illegal and irrelevant and charged erroneously as to its effect, this will not be held cause for a new trial, when it appears that even had such evidence been rejected and such charge not given the result must necessarily have been the same. Judgment affirmed. All the Justices concurring.