State ex rel. Kelley v. Thornton

• Decision Date: 31 March 1874
• Citation: 56 Mo. 325
• Parties: STATE OF MISSOURI to use of MARCELLA KELLEY, et al., Defendant in Error, v. JOHN F. THORNTON, et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

56 Mo. 325

STATE OF MISSOURI to use of MARCELLA KELLEY, et al., Defendant in Error,

v.JOHN F. THORNTON, et al., Plaintiffs in Error.

Supreme Court of Missouri.

March Term, 1874.

Error to St. Louis Circuit Court.

Jecko & Hospes, for Plaintiffs in Error.

I. Plaintiffs have no interest in common in the cause of action sued on. Each is entitled to a part of the money, in his own right, and not entitled to the entire sum jointly with the others.

II. There never having been a final settlement of the administration, and no administrator de bonis non having been appointed, no action will lie on the bond.

Alex. J. P. Garesche, for Defendants in Error.

I. Until there was an order of distribution plaintiffs had a joint interest, and that should be a sufficient answer. Moreover, suits by all prevents a multiplicity of suits. (Oliver v. Crawford, 18 Mo., 263; Devore v. Pitman, 3 Mo., 180; State to use of Adams vs. Campbell, 10 Mo., 726; State to use of Collins vs. Stephenson, 12 Mo., 181; Dillons' Adm'r vs. Bates, 39 Mo., 300; State to use of Midgett vs. Matson, 44 Mo., 305; Wagn. Stat., 1001, § 6; Lane vs. Dobyns, 11 Mo., 106.)

II. It was not necessary that there should have been a final settlement. (State to use of Ingram vs. Rankin, 4 Mo., 427; State to use of Darland vs. Porter, 9 Mo., 356; State to use of Midgett vs. Matson, 44 Mo., 305.)

ADAMS, Judge, delivered the opinion of the court.

This was an action by the relators as distributees of the estate of Michael Nolan, deceased, against the defendant as surety of Christopher J. Caffrey on his bond as administrator.

The record shows that on the 10th day of December, 1864, Michael Nolan died intestate, leaving the relators as his only heirs at law and distributees of his estate. That on the 13th day of December, 1864, the said Caffrey was appointed administrator of his estate by the St. Louis Probate Court and filed his bond in the usual form with the defendant as one of his sureties. On the 28th day of March, 1868, Caffrey made his annual settlement, from which it appeared that there was in his hands, as administrator, the sum of twenty-six hundred and fifty-five 84-100 dollars. Caffrey then left the State; and at the December Term, 1869, the Probate Court revoked his letters. No administrator de bonis non was appointed, and no further orders or proceedings were had in the Probate Court, either in the way of an order of distribution or of any kind.

On the 19th day of May, 1871, the relators commenced this action upon the administrator's bond, alleging as a breach, that the administrator failed and refused to pay the sum, shown by said settlement to be in his hands, to the relators. The petition alleges the foregoing facts, and also alleges, that more than two years had elapsed before the commencement of the suit and after the granting of the letters of administration; and that no debts or demands exist against the estate. The answer is a general denial. At the trial, the facts as alleged were established by the evidence, and the court gave judgment for the plaintiff. The defendant moved in arrest, which being overruled, he appealed to the General Term, where the judgment at Special Term was affirmed, and he has brought the case here by writ of error.

1. The first point presented for our consideration is, that the relators cannot maintain this action, because their interest is not joint, but several, in the common fund, and therefore, each must bring a separate action.

There has been no order of distribution and no separation of...