Hilton v. Hilton's Admr.

Opinion of the court by JUDGE O’REAR Affirming. The petition, alleges the death of W. I. Hilton in 1889 in Simpson county, and the appointment and qualification of appellee; J. W. Iiaird, as his administrator. It shows that the .appellant had made a settlement of h.is accounts, but when or where is not shown; and the first four paragraphs of the petition are devoted to setting up matter looking to a surcharge of the settlement, and for a more complete and thorough accounting by the administrator. The remaining six paragraphs set out entirely different and independent causes of action, each against separate and distinct individuals, none of whom are involved by or concerned in the matters set up in any other paragraph. The following paragraph (o) is substantially, if not literally, the language of all the others, save the name or names of the parties sued. It is as follows; “Par. 5. These plaintiffs say further that they are informed and charge that defendant Mark Whitesides has of said assets belonging to said estate the sum of - dollars, which he kept and appropriated to his own use, and failed to deliver same to said Baird as administrator, and which said administrator should have recovered as aforesaid. They say that they can not tell, and have no means of obtaining information, what amount of bonds [525] said Whitesides thus appropriated without the aid and assistance of these defendants, who had the means of ascertaining the amount at the time; and said Whitesides alone, as far as they are informed, knows the disposition which he made of said bonds, and he is called on to disclose all his acts and doings touching the property of said I-lilton.” A motion to require plaintiffs to elect which of the several causes of action sued on they would prosecute, was entered, and sustained by the court. Plaintiffs then tendered an amended petition, in which they included all their causes of action set up in their petition in one paragraph, except as to defendant, Mark W. Whitesides; they electing, they said, not to prosecute the action against him. The court, on defendants’ objection, declined to allow this amendment to be filed, and plaintiffs excepted. Thereupon the court entered this order: “The plaintiffs, by attorneys, having appeared in open court and having refused to elect, the court, upon its own motion, hereby strikes from said petition the causes of action against all the defendants except the defendant J. W. Baird, to which order of the court plaintiffs object and except; and the plaintiffs by attorneys in open court then refused to proceed further, and declined to prosecute said causes against said Baird. It is therefore ordered and adjudged by 1he court that the plaintiffs’ petition be dismissed, and the defendants recover of the plaintiffs their costs herein expended, for which execution may issue, to all of which plaintiffs object and except, and pray an appeal to the court of appeals, which is granted.” This court, in Bank v. Boswell’s Adm’rs, 93 Ky., 92, (19 S. W., 174), — an action to settle and distribute 1he estate of a decedent,- — had occasion to consider this identical question. There were we called upon to construe and apply [526] the sections of the Civil Code applicable to such proceeding, being especially section 428, subsections 1, 2, and sections 65, 66; and we then held that subsection 2 of section 428, which provides that all persons “having a lien upon or interest in” the property of a decedent should be made parties to the suit, did not embrace the debtors of the estate. Judge Bennett, speaking for the court, said: “To allow the representativé of such estate t'o make the debtors of it, or persons who are liable to it in some -way, parties to such action, and obtain judgment against them, would be to give the circuit court of the county in which the personal representative qualified jurisdiction of all the debtors of the estate, or other persons supposed to be liable to it, notwithstanding the fact that they might reside1 in every county in the State, and compel them to attend court in a distant county to look after their rights, and to' litigate differences in reference to same.” Following that case the lower court properly ruled that there was a misjoinder of actions and parties in this suit, and therefore properly compelled appellants to elect. True, this election might have been m'ade_ by amended petition; but an amendment that was even more objectionable in form, and none the less so in substance, than the original petition, was rightly rejected by the court. Appellants then declining to elect, the court was but following the provisions of section 85, Civil Code, in making the election for plaintiffs, and striking from their petition all causes of action and parties improperly joined to the one first named. Indeed, as the causes of action set'up against the defendants stricken out were not sufficiently pleaded, •the court’s election seems to have been well, for appellants, had they adopted it. Declining to prosecute the action or obey the orders of the court, it properly, under [527] section 371 of tbe Civil Code, dismissed the petition. And, although it is not so stated in the order, each of the dismissals, not having been upon the merits, was without prejudice-. There being no error in the record, the judgment is affirmed.