Rutledge v. Tunno

• Citation: 41 S.E. 308,63 S.C. 205
• Parties: RUTLEDGE v. TUNNO et al.
• Decision Date: 25 March 1902
• Court: United States State Supreme Court of South Carolina

41 S.E. 308

63 S.C. 205

RUTLEDGE

v.TUNNO et al.

Supreme Court of South Carolina.

March 25, 1902.

APPEALABLE ORDER—FRENCH SPOLIATION CLAIMS—INTERVENTION.

1. An order refusing a petition to be made a party to a cause is appealable.

2. Act Cong. March 3, 1891, making appropriations to pay French spoliation claims, provides that the awards shall be made on behalf of the next of kin. Held, that the personal representative of a deceased member of a firm to which the government has paid a French spoliation claim is not a proper or necessary party to proceedings by the personal representative of the surviving partner for instructions as to the distribution of the fund, unless he alleged in his petition that there are next of kin of his intestate entitled to take under the act.

Appeal from common pleas circuit court of Charleston county; Benet Judge.

Action by B. H. Rutledge against M. R. Tunno and others. John Johnson, administrator of James Cox, petitioned to be permitted to intervene. From an order refusing the same, petitioner appeals. Affirmed.

Huger Fitzsimons, for appellant.

A. R. Young, Benj. H. Rutledge, and T. Moultrie Mordecai, for appellees.

GARY, A. J. This Is an appeal from an order refusing the petition of the administrator with the will annexed of James Cox, deceased, to be made a party to an action brought by the administrator cum testamento annexo of the surviving partner of the firm of Tunno & Cox, for instruction as to the proper disposition of a fund paid to him. The fund amounted to $21,167.80, and was in payment of an award upon a French spoliation claim. Previously the United States had filed a petition asking to be made a party defendant, upon the ground that, inasmuch as there were no heirs at law or next of kin of James Cox living, the government was entitled to recover and receive back all such funds paid over by it to B. H. Rutledge, as administrator, etc., as were allowed and paid over to him as the supposed representative of the next of kin of James Cox, and by an order of the court the United States was allowed to intervene, and becamea party defendant The order refusing the petition of the administrator of James Cox to be made a party to the action is as follows: "This cause comes up before me on a motion made by the petitioner, John Johnson, administrator with the will annexed of James Cox, to intervene in the cause, with leave to plead, answer, or demur. The motion is resisted by the plaintiff, B. H. Rutledge, administrator de bonis non cum testamento annexo of Adam Tuuno, and the defendant Alfred Sartoris, and the United States of America, upon the ground that the petitioner is neither a necessary nor proper party. It nowhere appears that there are next of kin or heirs at law of James Cox, who were living and entitled to take under the act of congress of March 3, 1891, at the time of its passage, but, on the contrary, it is alleged by the United States of America that, if there be no heirs at law or next of kin living, that under the various acts of congress and laws and decisions relating thereto, the United States is entitled to recover and receive back all funds paid out by it to B. H. Rutledge, administrator de bonis non cum testamento annexo of Adam Tunno, surviving partner of Tunno & Cox, as were allowed and paid over to him as the supposed representative of the next of kin of the said James Cox, as set forth in the complaint in this action; and it further appears from the answer of ...