Sigler v. Vaughn

• Decision Date: 30 April 1883
• Citation: 79 Tenn. 131
• Parties: Lucinda C. Sigler v. R. M. Vaughn et al.
• Court: Tennessee Supreme Court

79 Tenn. 131

Lucinda C. Sigler

v.R. M. Vaughn et al.

Supreme Court of Tennessee.

April Term, 1883.

FROM SHELBY.

Appeal from the Chancery Court at Memphis. W. W. MCDOWELL, Ch.

W. M. RANDOLPH for Complainant.

ESTES & ELLIOTT, CRAFT & COOPER, R. J. MORGAN and HUMES & POSTON for Defendants.

FREEMAN, J., delivered the opinion of the Court.

A motion is made to dismiss the appeals of defendants, Schobel, Tucker and wife, and Liddon and wife.

In the case of Schobel, his demurrer was sustained in part, but overruled as to the last point, with leave to rely on it in his answer at hearing. From this ruling, overruling the demurrer, he has appealed.

He is sued as surety on an administration bond, and the point made against him on this particular part of the case is, that on petition of former sureties of Cash, adminstrator of Isaac Bolton, a new bond in the sum of $65,000 was required to be given for his administration, and Schobel was one of the sureties, the suit being by the widow of Bolton, who had dissented from his will and married Sigler. The motion must be allowed as to Schobel; his demurrer, while in form and for the present disregarded, is still permitted him, and he stands on it in the court below. Such a case is not within the Code on this subject: 6 Lea, 650.

The case of the other appellants is, that they are sued as devisees and legatees of John Harding, a surety on Cash's bond for administration of Bolton's estate. Harding is shown by the bill to have died, and his executrix qualified, and entered on her duties in November, 1871, and the estate claimed to have been wound up and the executrix discharged July, 1875. This suit was brought July, 1880, nearly nine years after probate of will and letters testamentary.

The demurrer insists that no suit had ever been brought aganst the personal representatives of Harding, and none could have been brought against them as legatees and devisees without this, and that personal assets same to the hands of the executor, together with statute of limitations.

These defenses, if sustained, would relieve these parties of all liability in any event. The chancellor overruled demurrers based on them, and the question is, whether this appeal can be allowed till the other parties have been sued to final decree. It is clear the questions presented on this demurrer, if sustained, dismiss these defendants from the case, and are a complete defense to the case against them. They are not joint parties to the bond, on which the liability is sought to be enforced, and their defenses are independent of the defenses to be made by others in the suit. No reason is seen why the suit may not take its regular progress, while this demurrer is being disposed of by this court.

By sec. 3157, Code, the chancellor or circuit judge may, in his discretion, allow an appeal from his decree in equity causes, determining the principles involved, and ordering an account, etc., or he may allow such appeal on overruling a demurrer, or he may allow any party to appeal from a decree which settles his right, although the...