Calvet v. Calvet

Mathews, J. delivered theopinion or court. This suit is instituted by some of [302] the heirs of Mary Calvet, against other heirs oí the same person, to obtain a partition of the succession of the deceased. In their petlti0n they prayed for a sequestration of certain slaves, which are alleged to be part of the estate of their ancestor, but now in the possession of a third person, who was about to remove them out of the jurisdictional limits of the state. This person claimed a right to intervene, which was allowed by the judge a quo, and by his petition of intervention, set up title to the slaves in question. No answer was made by the principal defendants, nor was a judgment by default taken; and the suit by the inter-venor appears, on the record, to be in the same situation with the original action. The judge, notwithstanding the want of issue joined, or contestatio litis, proceeded to adjudge the cause, as between the original plaintiffs and the person who intervened; and this proceeding is complained of by them, (the appellants,) as being erroneous. We are of opinion, that the court of probates erred, in proceeding to give final judgment, before judgment by default was taken or answer filed. See, in support of [303] this decision, the cases of Freeland vs. Lanfier, vol. 2. and Hughes vs. Harrison & Wife, decided during the present term of this court. Ante. 297. Rigg and Winn for plaintiffs, Flint and Thomas for defendants. It is therefore ordered, adjudged and decreed, that the judgment of the court below be avoided, reversed and annulled; that the cause be remanded to said court, tobe proceeded in according to law; and that the intervenor pay costs, &c.