Prince v. Towns

• Citation: 33 F. 161
• Parties: PRINCE et al. v. TOWNS.
• Decision Date: 06 December 1887
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

33 F. 161

PRINCE et al. v. TOWNS.

United States Circuit Court, D. South Carolina.

December 6, 1887

Isaac M. Bryan, for complainants.

William M. Thomas, for defendant.

SIMONTON J.

The defendant took out letters of administration on the estate of A. M. Prince, who died intestate in 1860. He collected assets and paid debts, filing his account with the ordinary in 1862 showing a balance of $115.49 due to him as administrator, of which $104.34 was his commissioners. He filed no other account. On thirty-first May, 1872, he received from the sheriff of Greenville county the proceeds of an execution issued upon a judgment obtained by him as administrator against one Sullivan, $622.24. From this must be deducted fees paid his attorney for collecting,,-- 10 per cent.,-- leaving a net balance of $560.02. For this he is called to account. Some $369.52 of this money was deposited by the defendant in the Citizens' Savings Bank. The bank failed, and paid of it $206.83. No question has been made in this case as to the loss on this investment.

The parties complainant are the widow and three children of the intestate, his sole heirs and distributees. The case was called for trial. The attorney for complainant has been in attendance on the court for several days, and he pressed the case. The attorney for defendant communicated by letter his inability to be present, his general health being such that he never left the city of Charleston. It is the established practice of this court, never departed from but in rare and exceptional cases, not to force a continuance in invitum, for any other reasons than those laid down in the forty-ninth rule of court. Anticipating this, the defendant's attorney submitted an argument in writing. For these reasons the case is examined minutely.

The first objection of the defendant is that a demand has been made on the complainants for security for costs, and that this has not been complied with. It appears that this demand has been made very recently,-- within a few days. This cause has been on this docket for three terms. The answer was filed and the case referred. The master has held references, and has made his report. When proceedings have been commenced the defendant has the right to make personal demand on the plaintiff's attorney for security for costs, and may refuse to go on until this has been put in. After a cause is at issue, on the docket, heard in part, security for costs cannot be had but by an order of court on notice. This has not been done here. It is too late, in any event, at this stage of the case, to interpose the demand in order to prevent a trial. The next objection is that the complainants should have sued by prochein ami. One of them has done this. Nothing in the record or in the evidence has disclosed the fact that any other of the complainants is under disability to sue. The next objection is that the court has no jurisdiction of the case, either because the total amount claimed is below $500, or because the distributive interest coming to each party complainant is less than $500.

The special master has made up a statement, allowing the defendant every discount claimed by him. It shows that on twenty-eighth January, 1887, about seven months after bill filed, there was due $523.47.

While it is true that parties who have several and distinct interests cannot unite them for the purpose of creating jurisdiction, yet, when the representatives of a deceased intestate bring suit against an administrator, under the same title, and for a common and undivided interest, the court will have jurisdiction, although the amount which on division would come to each representative may be less than the jurisdictional minimum. Shields...