Watson v. Byrd

Campbell, J., delivered the opinion of the court. The bill charges that the complainant’s brother died intestate, leaving a small personal estate; and as the decedent had no heirs of his body, the complainant and the defendants are his heirs, and entitled to share equally his estate, but that the defendant, Sun Byrd, had taken possession of said personal estate, and converted it to his own use. The prayer is for account and distribution according to the rights of parties. [483] A demurrer was filed at rules, and not set down for hearing at next term on first day, and on motion of the complainant it was struck out. On application of the defendant leave was given to file another demurrer, which was filed, and heard and sustained, and the bill dismissed. It is assigned for error that after the first demurrer was struck out leave was given to file another, just like the first. The Chancellor had discretion to permit this. Such discretion should be cautiously exercised. A defendant who demurs, and fails to set his demurrer down for hearing on the proper docket on the first dajr of the next term, if filed in vacation, or on the same day he files it in term time, is not entitled, ordinarily, to any favor; and, unless good cause is shown for his failure to observe the statute, § 1068 of Code, should suffer the penalty of having to plead or answer; but we are not prepared to say that the Chancellor may not allow a second demurrer to be filed. In this case, not being advised by the record of the reason on which the Chancellor acted, we must conclusively presume that it was sufficient. The other question in the case is as to the propriety of sustaining the demurrer. It contains several special causes. Among them, because improper parties are joined in the bill. It was not properly sustained on this ground. Another cause is that the remedy of the complainant has long since been barred by the Statute of Limitations. The bill does not show that this is true. There are blanks in the bill as to dates; but if this was the objection to the bill, it should have been specifically pointed out, and an opportunity afforded the complainant to amend by filling the blanks. The remaining special causes of the demurrer amount to a denial of the jurisdiction of chancery, because there is a full and complete remedy at law, and it is apparent from the brief of counsel for the appellees that this is the cause of demurrer relied on chiefly, and on which, most probably, it was sustained and the bill dismissed. It is well settled in this State that in the absence 'of an administration of the estate of a decedent a Court of Chancery will decree distribution among the heirs. Farve v. Graves, 4 S. & M. 707 ; Rabb v. Griffin, 26 Miss. 579; Wood v. Ford, 29 Miss. 57. [484] It was error to sustain the demurrer, and the decree will be reversed, the demurrer overruled, and the cause remanded, with leave to the defendants to answer within forty days after the mandate herein shall have been filed in the chancery court clerk’s office.