Glisson v. Carter , 28 Ga. 516 ( 1859 )

By the Court.

Benning, J.,

delivering the opinion.

Joseph IT. Carter, the appellant from the Court of Ordinary, having died pending the appeal in the Superior Court, and no person having been made a party in his place, the first question is, whether the case is properly before this court.

We think that the death of Carter, the appellant, had the effect to abate the suit; or, the effect to suspend it until a new party was made; or, until the proper effort to obtain a new party had proved unavailing.

If the death of Carter had the effect to abate the suit, it carried the suit out of the court below and there remained in that court, no case to be brought to this court. On this hypothesis, then, it is clear that the case is not properly before this court.

If the effect of Carter’s death was to suspend the suit until a new party was made, then, it is equally clear that the case is not properly before this court, for no new party was made; and the case was, therefore, in a state of suspension when it was brought into this court, and a case in that state is in a state that does not admit of its being brought to this court.

If the effect of Carter’s death was to suspend the case until the proper effort to obtain a new party had proved unavailing, then, still the case is not properly before this court; for no effort at all had been made to obtain a new party. On the hypothesis of a suspension of the suit, the person or persons entitled to be made parties in Carter’s place were all such persons as had an interest in the estate on which Glisson was seeking to become administrator, — the estate of William H. Carter. These were, the creditors of William; his nest of kin; and the legal representatives of Joseph; for although Joseph’s right to claim the administration, for himself, died with him, yet not so did his right to dispute the claim of Glisson to the administration ; if Glisson was not a proper person to have the administration, it was the right of the legal representatives of Joseph to show it, and to insist that the'administration should not be granted to him, but to some person who was a proper person to have it. The creditors and the next of kin of William would have had the right to intervene in the suit, even if Joseph had not died. His death, then, could not affect this right of theirs. No effort had been used to make any of these persons a party. It does not appear that even the death of Joseph had been suggested on the record; or, that any scire facias had been served on his legal representative ; or, that an order had been taken that unless the persons in interest came forward by a named time and caused themselves to be named parties, Glisson would be allowed to proceed ex parte with the case. We think that it was necessary that some, or all, of these three things should have been done before Glisson could move in the case. If these had been done, and if they had proved insxzfficient to get a party in Joseph’s place, then, doubtless, it would have been in order for Glisson to move in the case. But,' even then, what would have been his proper motion ? To dismiss the appeal? or, to have the appeal regularly tried ? We rather think the latter. The appeal having been regular, did it not obliterate the judgment appealed from, and put Glisson in the condition of needing a new judgment by a new tribunal ? Be this as it may, we think that Glisson was not in order to proceed in any way with the case, until the steps indicated for getting a new party had been taken. These steps not having been taken, the case was not in a condition to be brought to this court.

Another thing must be mentioned. The case is an ex parte case. Can any ex parte case be brought to this court ? If so, how is it to be done ? There is no one on whom to serve the bill of exceptions.

All things considered, we think that this case ought to be dismissed,, as a case not properly before this court.

Case dismissed.