Kerrin v. Roberson

• Decision Date: 31 January 1872
• Citation: 49 Mo. 252
• Parties: F. T. KERRIN et al., Plaintiffs in Error, v. ALBION ROBERSON et al., Defendants in Error.
• Court: Missouri Supreme Court

49 Mo. 252

F. T. KERRIN et al., Plaintiffs in Error,

v.ALBION ROBERSON et al., Defendants in Error.

Supreme Court of Missouri.

January Term, 1872.

Error to Pettis Circuit Court.

F. P. Wright, for plaintiffs in error.

Hatton, administrator de bonis non and successor to Roberson, who is charged with combining and confederating with Roberson in making his fraudulent final settlement, was a necessary party to a complete determination of the questions involved. There is in fact but one administrator of an estate. The administrator de bonis non stands in the situation of his predecessor. He controls the assets, and it is his duty to acquire them, whether such assets are in the hands of the former administrator or in the hands of others. He alone can sue for them. (State ex rel. Collins v. Dulle, 45 Mo. 269; State, to use, etc., v. Fulton, 35 Mo. 323; State ex rel. Crow v. Cox, 45 Mo. 311.)

As to parties, the rule in equity cases is that all parties materially interested, either legally or beneficially, in the subject-matter of the suit, as in the case at bar, ought to be made parties, either as plaintiffs or defendants, so that there may be a complete decree. (Sto. Eq. Pl., § 72; Melford's Ch. Pl. 189.) One reason of this rule is to prevent future litigation and to avoid a multiplicity of suits. (Nolan v. Carter, 31 Cal. 427.)

No judgment was rendered on Hatton's demurrer. He remaed in court until the final judgment of nonsuit was taken, when the court refused to hear the evidence. (Roberson v. Morgan County Court, 32 Mo. 428; The State v. Pepper et al., 7 Mo. 348.) But even if there had been a dismissal as to Hatton by a judgment of the court, jurisdiction over Roberson having been properly acquired, it would not be lost by such dismissal. (January v. Rice, 33 Mo. 409.)

Roberson having been duly served with process, he should have objected to the jurisdiction, either by demurrer or answer. (Morton v. Green, 10 Mo. 652.)

Where the case requires it, different judgments or decrees may be rendered in the same action, and against one or more of several defendants. (Wagn. Stat. 1051, § 2; Wescott v. Bridewell, 40 Mo. 146.)

Philips & Vest, for defendants in error.

I. All the acts of maladministration and misfeasance alleged against Roberson were committed by him solely prior to any connection whatever with him on the estate by Hatton. The latter was sued as administrator de bonis non, and as he was not such administrator until after Roberson ceased to hold his office, there could not possibly have been either a combination between or joint liability by them as such administrators. There was no privity between these administrators, nor was Hatton responsible for any devastavit or default of Roberson's. (Redf. Wills, ch. 3, p. 90; Alsop v. Mather, 8 Conn. 584; In re Small's Estate, 5 Penn. St. 258.)

II. The Circuit Court of Pettis county had no jurisdiction over the defendant Roberson. Only such persons may be joined as defendants as are necessary to a complete determination of the question involved, or such as are united in interest. (Wagn. Stat. ch. 110, pp. 1000-1, §§ 5-7.) And the provision in section 1, article III, of same chapter, that “when there are several defendants, and they reside in different counties, the suit may be brought in any such county,” of course contemplates a case where several defendants are united, as specified in article I. And if they are not necessarily joined, the actions should be separate, and instituted “in the county within which the defendant resides.” It never was intended by the Legislature that a plaintiff, in order to bring his adversary out of a remote county to litigate their controversy at the plaintiff's home, should only join him with some disinterested party in the county of the venue, and then, after the adversary is drawn to his chosen field of contest, take a nonsuit as to the resident defendant. This is precisely what the plaintiffs attempt to do in this cause. Such arts are hurtful devices, and deserve severe rebuke by the courts. (Dunn v. Hazlett, 4 Ohio St. 436, 438; Shryer v. Miner et al., 20 Ind. 175; Ashburn v. Ayres, 28 Mo. 77-8.)

BLISS, Judge, delivered the opinion of the court.

Defendant Roberson was administrator of the estate of John C. Kerrin, deceased, and resigning his administration, defendant Hatton became administrator de bonis non. Each of said administrators made their separate settlements, and the plaintiffs, as heirs of said decedent, present their petition to the ...