Dorsey v. Kirkland

Mathews, J. delivered the opinion of the court. In this case, the plaintiffs claim to have a certain part of the succession of Zacharia Kirkland, deceased, sold for the purpose of making a partition between themselves and other co-heirs, alleging, that the part, which they request to be sold, is not susceptible of division in kind, &c. Dorsey and Winn for plaintiffs, Flint and Scott for defendants. The co-heirs are not made defendants in the petition, and although citations seem to have been issued to some of the parties intended to be sued, they have not answered regularly to the suit, nor has any judgment by default been taken. In truth, there has been no contestatio litis, without which, or a judgment by default, all subsequent procedures, as they appear on the record, must be considered as irregular. The petition is extremely defective, and might with propriety be dismissed, but as on a new trial it may probably be amended, we deem it more correct, to send the cause back to the court of probates. It is therefore ordered, adjudged and decreed, that the judgment of the court below be avoided, reversed and annulled, and that the cause be remanded to said court, to be proceeded in according to law, and that the plaintiffs and appellees pay costs, &c.