State ex rel. Headlee v. Henslee

Napton, Judge, delivered the opinion of the court. This action is by the administrator de bonis non of Nathan Boon against the representatives of his administrator. After setting out the bond of Shackelford, the petition states, that Shackelford and Boon, his co-administrator, received assets, of the estate of ,Natkan Boon to the amount of $19,714; that they were credited with $10,844, and still have in their hands $8,870. The petition avers a failure on the part of Shackelford and Boon to make annual or final settlement, and judgment is asked for the penalty of the bond, with execution for the amount so alleged to be unaccounted for. The finding of the court was for $8,085.65, and a judgment for the penalty, and that the said amount was to be allowed in the Probate Court against the estate of said Shackelford. A motion for a new trial was filed in the time authorized by the statute, which was overruled about a year afterwards, and then a motion in arrest was filed. The objections taken in both motions were purely technical, not going to the merits of the judgment. Conceding, however, that the motion for arrest was in time, we see no ground for reversing the judgment of the court below in overruling it. It is said there were several breaches of the bond averred, and that upon each there should have been a separate verdict, but there was substantially but one, and that was the failure to pay over or account for the sum [519] alleged to have been received, and upon this there was a verdict and judgment. Judgment affirmed. The other j udges concur: Judges Wagner and Sherwood absent.