State ex rel. Hay's Adm'r v. Petticrew's Ex'r

• Decision Date: 31 January 1854
• Parties: THE STATE, TO THE USE OF HAY'S ADMINISTRATOR, Respondents, v. PETTICREW'S EXECUTOR, Appellant.
• Court: Missouri Supreme Court

19 Mo. 373

THE STATE, TO THE USE OF HAY'S ADMINISTRATOR, Respondents,

v.PETTICREW'S EXECUTOR, Appellant.

Supreme Court of Missouri.

January Term, 1854.

1. A referee need not report his decision in admitting or rejecting a witness or testimony unless required so to do by the order of reference.

2. In an action against the executor of an executor upon the latter's bond, it is necessary that the declaration should allege that neither the executor, in his lifetime, nor his executor since, have performed the act required by law or the order of the court. Such an allegation will not make the declaration bad for a misjoinder of actions.

Appeal from Chariton Circuit Court.

Abell & Stringfellow, for appellant.

1. It was the duty of the referee to report the evidence offered, and his action in receiving or rejecting it. 2. The declaration is fatally defective, in uniting causes of action arising before the death of Petticrew and since the administration of Williams--causes of action against the executor as such, and against him personally. This defect is not cured by the verdict. 1 Chitty's Pl. 235, 236.

Morrow, for respondents.

SCOTT, Judge, delivered the opinion of the court.

1. This cause was begun before the late practice act went into effect. The court, against the consent of the parties, had authority, under the 24th section of the fifth article of the act concerning practice at law, to make a reference of the cause, as its trial required the examination of a long account. The order of reference directed that the referee should hear and decide the whole issue between the parties and make report thereof to the next term of the court. There was no order made pursuant to the thirty-second section of the act concerning arbitrations and references, requiring the referee to report his decision in admitting or rejecting any witness, or the deposition of any witness, or other testimony and other matters mentioned in that section. The report of the referee shows that objections to the admission and rejection of evidence were made, but nothing of the evidence is preserved in the bill of exceptions. Neither party having moved the court to require this report, all cause of complaint is removed.

2. We do not see any foundation for the objection that there is a misjoinder of action. The suit is brought against the executor of Petticrew, who himself was executor of Robert Hays, by an administrator de bonis non of said Hays.

The declaration avers that an order of the county c...