Hedrick's Admr. v. Hopkins

Paull, Judge : The original bill in this case was filed by the plaintiff against defendant, as her committee, in the circuit court of Pendleton county, in the year of 1867. In April, 1871, the plaintiff having departed this life, her administrator, Daniel H. Acrey, obtained leave of the court, to file an amended bill, making the sureties of the defendant Hopkins, in his bond as committee, parties to this suit. Accordingly, a summons was sued out of the clerk’s office ,of the cii’cuit court of said county, directing George W. Dice, Jacob F. Johnson, David C. Anderson, John E. Wilson and Benjamin Hiner to be summoned to answer the plaintiff’s amended bill. The process was returned executed upon three of the above named parties; but as to two of them, to-wit: George W. Dice and David C. Anderson, the return shows that they were not residents of said county, and were not found. In June, 1S71, the amended bill was filed, praying that all of the above named persons, in said process mentioned, be made parties defendant, and that they be decreed to pay to the plaintiff, whatever may be found due to the estate of his intestate. The defendants filed a demurrer and a plea, alleging [171] that said George W. Dice and David C. Anderson,'(two <of the sureties of said Hopkins) are necessary parties, and that the same are not parties, and not before the court. The court subsequently directed an account to be taken of the amount due from the defendant Hopkins to the plaintiff’s intestate, which account ivas taken and returned with exceptions: And in November, 1871, a final decree was rendered in the cause, overruling the demurrer and plea of defendants, and discontinuing the ■cause as to said defendants Dice and Anderson, and directing that the plaintiff recover of defendant Hopkins, "Wilson, Johnson and Hiner, personally, and of 'George A. Lough, executor of said Laban Smith, the ■sum of |2,502.29, and the costs of suits, including an attorney’s fee of $30. From this decree, the defendant Hopkins has taken 'his appeal to this Court. In this aspect of the case, the material question presented for consideration is that connected with the making of the requisite or necessary parties and the proper maturing of the case for hearing. When it was proposed to make the sureties of defendant- Hopkins, in his official bond, parties to the suit, it was necessary that all of said sureties, and not some of them only, should be made parties, unless at least sufficient reason is shown for not doing so. It was so held in the case of Hutcherson v. Pigg, 8 Gratt. 220. The syllabus recites: “All the sureties in the official bond ■of an executrix, should be parties to a suit by legatees for distribution, or a sufficient reason should be shown for failing to make them parties, before a decree is made against one of them.” In the case before us, however, so far as we know, all ■of the sureties of defendant Hopkins were made parties . in the process and in the plaintiff’s amended bill; but ■on two of them, to-wit: Dice and Anderson, the process was not served, the sheriff returning that they were "not inhabitants of his county, and not found and as [172] to them, by the decree of the court, the cause was discontinued, and a decree rendered against the other sureties for the payment of money. The eighth section of chapter one hundred and twenty-five of the Code provides when an officer may return a defendant named in a summons a non-resident; and ■ provides further that if the court from which such process issues has jurisdiction of the case .only on the ground of such defendant’s residence in such county,, the action or suit shall abate as to him. But this section does not' apply to the present case, the court having jurisdiction of the same, and over these parties; without regard to residence of the parties in the county. In the case of Edward Bland, Admr. of E. Bland v. John and Agnes Wyatt, 1 H. & M., 543, a bill was filed on behalf of certain infants against the heirs of their guardian, who died intestate, the sheriff to whom his estate was committed (no administrator having qualified), his surviving security in the bond given for the performance of his duty as guardian and the administrator of the security as co-defendants. No process having been served on a part of the heirs, nor on the surviving security, a decree against the administrator of the deceased security was held to be erroneous, because there were not proper parties convened before the court; and the decree was reversed and the cause remanded for further proceedings ; the decree of the Supreme Court reciting that •the decree of the court below “was erroneous in proceeding to a hearing of the said cause before all the defendants had been properly proceeded against.” The case before us is precisely similar in its facts to thé case here cited, and the decree of the circuit court of Pendleton county must, for the same reason there expressed, be held erroneous. The defendant Hopkins has alone appealed to this Court, but the other defendants, the sureties in his official bond, have claimed the benefit of that appeal, and seek to have the decree complained of reversed. [173] As the case must be remanded for further proceedings, .•and that the same may properly matured, no other ques-lions seem fairly to arise for further determination at this lime. ' The decree of the circuit court, made on the 13th day of November, 1871, is hereby reversed, with costs to the appellant, and this case is remanded to the circuit court ■of Pendleton county for further proceedings to be had therein, according to the principles governing courts of •equity. Haymond, President, and Ploffman, Judge, concurred. Absent, Moore, Judge. Decree Reversed and Suit Remanded.