Satterfield's Administratrix v. Crow , 47 Ky. 553 ( 1848 )

■Judge Simpson

delivered the opinion of the Court.

This was an application by the defendant in error., •to the Caldwell County Court, for leave to ei-.ect a water grist mill. He owned the land on one side of the water course and the bed of the struam. The land on the opposite side, against which he-desired to abut his dam, belonged to Elijah Satterfield, to whom he gave the requisite notice of his intended application.

The Court ordered a writ of ad quod damnum to issue, which was executed by the Sheriff according to its command. Satterfield died, however, before the return of the inquest. But the Court, notwithstanding his death, without any revivor, and without having made his heirs parties to the proceeding, went on to make a final disposition of the case, and made an .order approving of the inquest and establishing the mill and dam.

It was manifestly erroneous after the death of Satterfield, to proceed with the motion until Satterfield’s heirs were made parties, or at least such steps- were taken for the purpose, as the statute contemplates. The title to the acre of ground, the value of which had been ascertained by the inquest, upon the death of Satterfield, descended to his heirs. They were, therefore, interested in the assessment of its value, and the amount belonged to them. They also, had a right to be heard in opposition to the motion, inasmuch as its successful 'prosecution might result in divesting them of 'the title to the acre of ground.

J. Sf W. L. Harlan for plaintiff:; -Cates fox-defendant.

But the writ of- error for the reversal of the order of the County Court, can only be maintained by the heirs. They alone are prejudiced by the proceedings complained of. The personal representative has no interest in the matter, and cannot prosecute a writ of error in her name. There was no judgment for cost, nor any order ■ affecting the administratrix.

Wherefore, this writ of error is dismissed.