Phelps v. Sawyer

By the court: Rost, J. Samuel P. Stone, the administrator of the succession of Elias Carter, deceased, having absconded without settling his accounts, the plaintiff was appointed in his place, and brought suit to compel him to account. The petition was answered and an account of Stone’s administration, filed by Elias Carter, Jr., who pretended tobe the agent of .Stone. Judgment was rendered [552] in favor of the plaintiff, in that suit, for $1031. Execution having been issued on that judgment, and return, “ no property found,” the administrator brought suit against the sureties of Stone on his bond. The defendants in that suit alleged as one of the grounds of their defence, that the judgment against Stone had been obtained by fraud and collusion, and brought a separate action against the administrator to annul it. There were other grounds of defence, which it is unnecessary to notice. The suit of the administrator against the sureties, and that brought by the sureties to annul the judgment against Stone, were consolidated and tried together. The district court annulled the judgment and dismissed the action against the sureties as in case of non-suit. The administrator has appealed. The power of attorney under which Elias Carter, Jr., represented Stone in the first suit, is in evidence. It is essentially a special power, and conferred no authority on Carter to defend that suit. The plaintiff had asked for the appointment of a curator ad hoc, but no appointment was made ; and as the defendant was unrepresented in the proceedings, the judgment rendered against him was properly annulled and set aside. There being no judgment against the principal debtor, and he not being made a party defendant in the suit against the sureties, that action was also properly dismissed. The judgments in both cases are therefore afñrmeá.