Motsinger v. Coleman

Catón, J. While the statute secured to the heirs the right to appear by their guardian before the county court, and contest the validity of the claims filed against the estate, they were obliged to defend against these claims in the name of the administrator. He alone was the party to the record. The heirs may well be considered, in such a case, as occupying a very similar position to one for whose use' a suit is brought in the name of another. In such a case the claim must be maintained or a right asserted in the name of the nominal party, and in case of an appeal by the opposite party, the process is only issued to and served upon the nominal party, and the party in interest is bound to take notice of such service and appear to the action in the appellate court, as much as if he had been the nominal as well as the real party, and as such had been served with process. So here, the appellant was only bound to bring into court the administrator who was at least the nominal legal party to the proceeding, although in the circuit court, the infants by their guardian had the same right to appear and contest the claims as they had in the county court. This they did not do, but suffered a default, or, in other words, failed to appear and defend the claims in the circuit court, whereupon the claimant’s damages were assessed and judgment rendered. A party cannot come into this court and for the first time complain of the amount of damages assessed in the case of a default, especially unless there is a bill of exceptions showing all of the evidence upon the inquiry of damages. Where the party is dissatisfied with the amount of damages assessed upon a writ of inquiry, or by the court or clerk upon a default, the proper practise is to file affidavits showing all the evidence heard upon the writ of inquiry, and ask that the inquest be set aside and a new writ of inquiry be issued, or that the inquest and default be both set aside and the party let in to make his defense. And if upon a proper case thus presented, the court should refuse' to set aside the inquest, it may be that this court would correct such erroneous decision, but without something in the record showing the whole of the evidence upon which the inquest was found, it is impossible for this court to say that the damages were .excessive. So here, a state of case may be imagined which when proved might both legally and equitably have entitled the claimant to the full amount of his claim, and as the record does not show that such a case was not proved, we are bound to presume that the proof was sufficient. The decisions of the circuit court are presumed to be correct till the contrary is affirmatively shown. Upon the whole we feel bound to affirm the judgment of the circuit court. » Judgment affirmed.