Berry v. Robinson

• Decision Date: 31 July 1845
• Citation: 9 Mo. 276
• Parties: BERRY v. ROBINSON ET AL.
• Court: Missouri Supreme Court

9 Mo. 276

BERRY

v.ROBINSON ET AL.

Supreme Court of Missouri.

July Term, 1845.

ERROR TO CALLAWAY.

REID & HARDIN, for Plaintiff. 1. Is the complainant, Berry, entitled to the discovery sought in a court of equity, and relief prayed for. 2. Has complainant by virtue of the facts stated and exhibits made in said bill, such an equitable right as will be enforced by a court of equity to a decree against Robinson, as administrator, &c., of Samuel Dooley, deceased, for an amount sufficient to satisfy the judgments rendered in the Calloway County Court, against administrator of Thomas Dooly, in his (complainant's) favor. 3. This bill is not, upon its face, destitute of equity, but contains equity, consequently said demurrer should have been overruled, and not sustained. 4. The record may authorize the raising of other questions, all of which it is presumed, however, may be considered under the above heads.

Authorities: For 1st point, see generally, 1 Story's Eq. 82, and authorities there referred to. For 2nd point, Armstrong v. Gilchrist, 2 Johns. Cases, 424; Rathborn v. Warren, 10 Johns. R. 587, 596; King v. Baldwin, 17 Johns. R. 384. See 1 Story, 88, and authorities there referred to, note 2. For 3rd point, 1 Story, under head of Administrators, generally, and authorities there referred to.

JAMISON & SHELEY, for Defendants. 1. There is a general rule that chancery has no jurisdiction over any subject-matter, or the power to grant relief where there is a remedy at law; in all such cases the parties will be left to seek redress in a court of law, the only legal and proper tribunal to investigate such matters. See Blanchard v. Kenton, 4 Bibb, 451; McGreery v. Lewis, 4 Bibb, 323; Watts & Garraty v. Hunn, 4 Littell, 267; Brady's Ex'r v. Ellis, 1 Mo. R. 402. 2. It being established that the courts of equity will not entertain jurisdiction when there is a remedy at law, the following authorities go to show that the plaintiff had his remedy at law, if, as alleged, he was one of the heirs of the said Samuel Dooly, deceased, or stands in the place of one of the heirs by purchase. See Rev. Code 1835, 8th and subsequent sections of the 7th article of the law regulating Administration. 3. The bill was defective, and the demurrer properly sustained thereto, because the same concluded with a prayer in the alternative. See Shields and Hickerson v. Bogliolo, 7 Mo. R. 134.

MCBRIDF, J.

The complainant brought his bill in chancery against the defendants, alleging that Thomas Dooly, deceased, was indebted to him on two notes of hand for one hundred and fifty dollars each; in consideration of which, Dooly, on the 16th November, 1831, executed a deed by which he assigned to complainant all of his interest in the estate of his deceased son, Samuel Dooly, who died intestate, leaving a large amount of real and personal estate, and that Robinson was appointed administrator. Subsequently Thomas Dooly died intestate, leaving no estate other than the interest which he was entitled to out of Samuel's estate, and that Preston B. Reid obtained letters of administration on the estate of Thomas. The deed from Thomas Dooly to the complainant having been lost or mislaid, he exhibited his demands to the County Court of Calloway county, and obtained an allowance against Reid, the administrator, for the balance due on the said notes, as also for an open account which he had against the said Thomas Dooly, deceased. Robinson, the administrator of Samuel Dooly, made his final settlement with the County Court, by which it appears that there was left of the estate of his intestate for distribution the sum of $2 000 or upwards. That the said Thomas Dooly, the father, John Dooly, the brother, Sarah Dooly, the sister, and William Dooly, the nephew, of said Samuel Dooly, were the legal heirs and distributees, and as such, each were entitled to the one equal fourth part of Samuel's estate, after the payment of debts, &c. That John Dooly has departed this life intes tate and insolvent--Sarah and William have also died intestate, and Paul H. Dooly has obtained letters of administration on their estate--and that distribution has been made by Robinon without regard to the complainant's rights. Robinson, Reid, and Paul H. Dooly are made defendants.

The bill seeks the enforcement of the assignment made by Thomas Dooly to the complainant of all his right and interest in the estate of Samuel Dooly, or a decree for the payment of his demands allowed by the County Court of Callaway county against Reid, as administrator of Thomas, out of the estate of Samuel Dooly, deceased, and for general relief. To the bill the defendants filed a general demurrer, which being sustained, the complainant has brought the case here by writ of error

The defendants insist that the complainant, having a full and ample remedy at law for the enforcement of his rights against the administrator of Samuel Dooly, cannot come into a court of equity to invoke the aid of the Chanceller, and refer the court to several decisions to be found in the Kentucky Reports. We...