Kerrin v. Roberson , 49 Mo. 252 ( 1872 )

Bliss, Judge,

delivered the opinion of the court.

Defendant Roberson was administrator of the estate of John C. Kerrin, deceased, and resigning his administration, defendant Hatton became administrator de bonis non. Each of said administrators made their separate settlements, and the plaintiffs, as heirs of said decedent, present their petition to the Pettis Circuit Court to set aside their settlements on account of fraudulent concealments, etc. Hatton resided in Pettis county and Roberson in L-on county, but service was had upon both. The latter did not appear, but Hatton demurred to the petition for misjoinder of parties and other causes, and the demurrer was sustained, the court holding that he had no interest in the settlement of the account of Roberson, and should not be joined in any proceeding to set it aside. The record shows irregularity in the proceedings, or great carelessness in the entries, but enough appears to enable us to pass upon one question, to-wit: the right of the plaintiffs to make Hatton a party to proceedings against Roberson, and the right thereby to compel the latter to leave the county of his residence and to answer in another. Where two or more are proper parties to proceedings, the plaintiff may institute them against the whole in the county where either may reside; but he cannot, for the purpose of obtaining jurisdiction over a non-resident of the county, improperly join one who ia a resident.

It is claimed that Hatton had such an interest as should make him a party, for the reason that it was his duty to receive or recover the assets in the hands of the former administrator. It is true that the administrator de bonis non, and not the creditor, is the proper person to pursue the estate in the hands of his predecessor (Collins v. Dulle, 45 Mo. 269); but it does not hence follow that he is a proper party to the proceeding now under consideration. If the allegations of the petition are true, the judgment should be to set aside the old settlement in whole or in part, and either to order a new one in the Probate Court, or the settlement should be made in the pending proceeding in the Circuit Court. But neither in setting aside the old nor in making the new settlement can any judgment he rendered against the other administrator. So far as this proceeding is concerned, their accounts are separate and independent, and there is no reason why they should be joined.

This defect has not been waived. Hatton demurred for the reason named, and Roberson, without appearing, objected to the jurisdiction of the court.

From the confusion in the record it is not easy to say what might be the effect of an affirmance of the judgment below. We will therefore dispose of the case by dismissing the petition without prejudice to the right to prosecute anew.

Judge Wagner concurs. Judge Adams not sitting.