Alford and Mixon v. Colson, use, &c. ALFORD AND MIXON v. COLSON, USE, &c. 1. Where there is a defect in proceedings removed by appeal or certiorari from a justice of the peace to the Circuit or County Court, a motion to dismiss, if available, should be made at the first term after the parties are in Court, and before a continuance of the cause. 2. An execution was issued by a justice of the peace, at the suit of C. against the goods and chattels of A, and levied on a slave, which A made oath was the property of W, and held by the affiant as his agent: a trial of the right of property was had between the plaintiff in execution and A, as agent, and the slave condemned to satisfy the execution; A then, upon his petition, obtained a certiorari and entered into bond with M as his surety, and the cause being removed to the Circuit Court, was dismissed, on motion of C; thereupon W applied for a writ of error, and executed a bond with surety for its prosecution. Held, that if W was the owner of the slave, the claim of property and all subsequent proceedings should have been in his name, instead of the name of A, as agent; that W could not prosecute a writ of error on the judgment of dismissal, and that the judg ment was correct. Writ of error to the Circuit Court of Monroe. An execution was issued by a justice of the peace, at the suit of the defendant in error against the goods and chattels of the plaintiff, Alford, and levied on a female slave, which Alford made affidavit was not his property, but that Henry D. Whippel was her owner. A trial of the right was thereupon had before the justice, between the plaintiff in execution and Alford, the agent of Whippel, claimant, a verdict was rendered in favor of the plaintiff, and judgment rendered condemning the slave to the satisfaction of the execution. Alford presented his petition praying that certiorari might be awarded, to remove the case to a higher Court for trial, which being granted, a bond was executed by the petitioner, with Mixon as his surety; conditioned as usual in such cases. At the second or third term after the cause was removed to the Circuit Court, the plaintiff in execution moved to dismiss it for the want of a proper affidavit. Thereupon it was ordered that the claim be Alford and Mixon v. Colson, use, &c. dismissed, and that the plaintiff recover of Alford and Mixon the costs, &c. From a bond for the prosecution of a writ of error, it appears, that Whippel applied for the same, and entered into bond with surety. The writ of error describes the cause determined in the Circuit Court to have been between Colson, use, &c. against Alford and Mixon, without noticing Whippel. W. P. LESLIE, for the plaintiff in error, insisted that the cause should not have been dismissed by the Circuit Court, nor a judg ment for costs rendered against Alford and his surety. COLLIER, C. J.-If at any time the Circuit Court should have entertained a motion to dismiss, for a defect in the affidavit by which the claim of property was interposed before the justice, it was certainly too late after one or more continuances of the cause, subsequent to the appearance of the parties. This point has been repeatedly so ruled in analagous cases. If the slave was the property of Whippel, the claim should have been interposed in his name. But instead of thus proceeding, the defendant in execution declares that he held the slave as the agent of Whippel, and the statement of the case before the justice, as well as the petition for a certiorari, and bond consequent thereon, show that in the character of agent, he was the claimant. Conceding that Alford's possession was, as he affirms in his affidavit, and still his principal should have been the party litigant, instead of himself. It was clearly competent for the Court to have looked into the case, and if it appeared that the claim was made by an improper person, to have dismissed it on motion. This course could not have been productive of injury to any one; for if the cause had been tried upon an issue to the jury, and a verdict returned for Alford, as agent, &c. the judgment must have been arrested. The fact that a writ of error bond was executed by Whippel, and a writ of error applied for by him, as the condition recites, can have no effect upon the case. We have extensive powers in respect to the amendment of writs of error, so as to adapt them to the transcripts they are intended to remove. But here, there is no want of conformity of Graham, et al. v. Abercrombie, et al. one to the other, and consequently no occasion for the exercise of the power. It has been shown, that although the claim could not have been dismissed for a defect in the affidavit merely, yet it was properly disposed of, because the claimant was also the defendant in execution, and if, as agent, he could have made the necessary affidavit and executed the bond, yet the proceeding should have been in the name of his principal, and thus progressed to the close. The consequence is, that the judgment must be af firmed. 8 552 125 234 GRAHAM ET AL v. ABERCROMBIE, ET AL. 1. When the petition of administrators claiming distribution as the representatives of a distributee is dismissed, and the final settlement in the Orphans' Court is made with other parties, the proper mode to revise the proceedings rejecting the claim is by certiorari, and a writ of error will be dismissed. 2. The interest of a distributee in an unsettled estate, is the subject of assignment; if one is made, it divests the interest of the distributee, so that no proceeding can be had by his representatives against the administrator; his assignee is thereby invested with all his rights, and they may be asserted by him in his own name. Writ of Error to the Orphans' Court of Lowndes. THE transcript of the record of this cause contains the entire proceedings in relation to the estate of Alex. Abercrombie, from the grant of administration to its final settlement. So much as is necessary to the correct understanding of the errors assigned here, will be recited. Administration was granted on the 2d August, 1841, to Martha Abercrombie, the widow of the decedent, and Thomas Abercrombie ; at the same time an order was made, authorizing them Graham, et al. v. Abercrombie, et al. to sell the perishable property of the estate, at public auction, on six months credit. On the 1st of November of the same year, as the record recites, Mrs. Abercrombie filed her petition, setting forth, that the decedent died without issue, whereby she by law is entitled to one one half of his personal estate; that the estate is in no manner embarrassed, or in debt, and therefore she prayed an order for the division of the estate. An order was accordingly made, that the whole of the personal estate should be divided into two parts, by certain commissioners then named, and that one part should be set apart to her, to be determined by lot. What purports to be a division and allotment is found in the transcript, under the signatures of three of the persons named as commissioners, and at the foot is written, "examined, admitted, and the usual orders to be made." Signed by the judge of the County Court, on the 3d January, 1842. On the 21st of November, of the same year, Mrs. Abercrombie, as the record recites, petitioned the Judge of the County Court to award a writ of dower, she alledging that her late husband died seized and possessed of certain lands, described on the minutes. The order for the writ was made the same day, and the writ, which is copied into the transcript, was then issued. A return of certain persons styling themselves commissioners, summoned by the sheriff to lay off the dower, &c., appears, allotting her one half the lands described in the return, which are the same as mentioned in the previous order. This return bears date the 21st January, 1842, and was examined and admitted. The clerk was also directed to enter said dower upon record, and to file the return as an office document. On the 3d July, 1842, Thomas Abercrombie returned a sale bill of one half of the personal property allotted by the commissioners as before stated. On the 27th March, 1843, Francis M. Abercrombie, and Alex. Graham, as administrators of James Abercrombie, as the transcript recites, petitioned the Court to issue a rule to the administrators of Alex. Abercrombie, to show cause why they should not make final settlement and distribution of the estate among the several heirs; and a rule was accordingly granted for them to show cause, on the 2d Monday of May, then next. An alias rule was ordered by the Court, on the 19th day of June, of the same Graham, et al. v. Abercrombie, et al. year, for the administrators to show cause, on the first Saturday in August, and no further proceedings seem to have been had upon the rule, until the 25th of November, when the minutes recite as follows; This day the petition of Francis W. Abercrombie and Alex. Graham, administrators of James Abercrombie was considered by the Court. Petitioners claimed to represent their intestate, who was an heir and brother of Alex. Abercrombie, and prayed for a rule, &c. Upon the return of the rule, the administrators of Alex. Abercrombie deceased, appeared in Court and put in their plea, stating that James Abercrombie, in his life-time, duly assigned his distributive share to be paid and delivered to William Burroughs, and that they had duly promised and assumed to pay the said Burroughs. The opposite party did not appear and join issue; the cause was then continued to this term, and upon evidence adduced, the Court was of opinion that said James Abercrombie had assigned away his interest; and that his administrators have no interest in the estate of Alex. Abercrombie. "Whereupon it is ordered by the Court, that said petition be dismissed, at the cost of the petitioners." The Court also ordered the petition to be recorded in the minutes of the Court, and the original, with the pleas, to be filed as office documents. Afterwards, at the same term, a final settlement of the estate was made, and the following persons ascertained as distributees, to wit: Thomas Abercrombie, Archibald Abercrombie, Mary Burroughs, wife of William Burroughs, and James Abercrombie, to William, Isaac, Cyrus, Mary and Eliza, children of Elizabeth Billinsglea, the said Mary being the wife of David Long and the said Eliza, the wife of Hamilton Moore. All these persons named as distributees are the brothers and sisters of the decedent, or children of a sister. The part of Mrs. Billingslea to be divided, share and share alike, between her children, and the part of James Abercrombie to remain in the hands of the administrators, to abide the process of the law. The administrators were ordered to pay the several amounts ascertained to the distributees. Another distribution was made of another portion of the assets, one half to the same parties, and the other half to Martha Lowry, formerly Abercrombie, she having since intermarried with Wm. Lowry, who by the intermarriage became, in right of his wife, a co-administrator. |