Farris v. Berry ( 1871 )

Ogden, J.

This suit was instituted in the court below, by the defendant in error, as administrator de bonis non on the estate of David Wetsel, deceased, against H. Bright, on a note payable to Peter Wetsel, administrator, and Sarah M. Wetsel, administratrix, of D. Wetsel, and against Peter Wetsel as principal, and plaintiffs in error and James Wetsel, sureties upon the bond as administrator of D. Wetsel, deceased; and he claimed in his petition that H. Bright was primarily liable for the amount due on said note, and that Peter Wetsel, and his sureties on his administrator’s bond, were also liable for the same amount, for the reason that the said Peter Wetsel, as said administrator, had failed to require of said Bright security for the payment of said note as required by law. The bond sued on was given by Peter Wetsel and Sarah M. Wetsel, as principals, who were administrator and administratrix of D. Wetsel, deceased, and were removed therefrom and defendant appointed administrator de bonis non, who brought this suit and obtained judgment by default, in the court below, against the plaintiffs in error, for the amount due on the Bright note, which judgment has been brought here bj .a writ of error.

We do not deem it necessary to notice all the assignments of error, as one or two will suffice to dispose of the cause. We are not satisfied from an examination of the statute, and the decisions on the same, that an administrator de bonis non may not maintain a suit on the bond of a former administrator for a failure to deliver up property belonging to the estate he represented, or for any other malfeasance or misfeasance of which he may have been guilty in his fiduciary capacity, and before a final settlement with the probate court.

But we are of the opinion that this suit must be dismissed because of the error in bringing the same, as well as for the errors committed on the trial. The suit was instituted against one of the administrators, without noticing the other, and against the securities on their joint bond, for damages in failing to perform his duties as administrator. This was error, of which the sureties had a right to complain. Peter Wetsel and Sarah M. Wetsel were joint obligors and principals on the bonds, and plaintiffs in error and James Wetsel were the security, and they had the right to have both of their principals sued at the same time with themselves, and, if necessary, that the property of their principals should first be exhausted to satisfy any judgment obtained against them on the bond. Sarab M. Wetsel, who after her marriage was Sarah M. Bandy, was not sued at all, and on the trial the plaintiffs below dismissed as to the other principal, and took judgment against the surety alone. This was such an error as will require this cause to be reversed and dismissed. On the trial below, the plaintiffs dismissed the suit as to the principal in the bond and the maker of the note sued on, and took judgment by default against the defendants, now plaintiffs in error, for the full amount due on the note of Bright. But upon inspection of the transcript, it will be seen that the-citation served upon both of the plaintiffs in error required them to appear and answer more than ten months before the issutance thereof. There was consequently no legal service, and the judgment by default must be held erroneous. This cause is therefore reversed, and for the want of proper parties defendants, it must be dismissed. ■

Reversed and dismissed.’