White v. Kennedy's Adm'r , 1883 W. Va. LEXIS 24 ( 1883 )

Woods, Judge :

It is possible from the frame of the, plain tiff's bill, to infer that it was intended for a creditor’s bill brought against the personal representative and the heirs of Andrew Kennedy, deceased, to settle the administration accounts of the personal representative and ascertain whether any, and if any, what amount of personal assets belonging to the estate of said decedent will remain in his hands applicable to the payment of decedent’s debts, what debts due from decedent remain unpaid, to whom owiug and the priorities thereof, what land was owned by .decedent at his death, and the annual rental value thereof and then to ásk a sale of said 'lands to pay said debts. But we are unable to determine from the allegations of the bill or from anything in the record, whether the defendants in the bill are heirs of the decedent or his creditors, nor can we determine whether his widow is living or dead, or whether she is one of the defendants before the court; and if any or ’all of them are his heirs, we are unable to determine, whether they are his children or the descendants of his children, orwhether they are his collateral kindred. The bill alleges that the plaiutiff’s demand is due upon the joint and several obligation of said Andrew Kennedy and one Philip P. Dandridge, who although jointly liable, is not made a party to the bill, simply because he is a non-resident. Although he is a non-resident and no personal decree can be obtained against him, unless he appears in the cause, yet he may appear, and he has the right to appear and make defense to the plaintiff’s demand, and in a court of equity the personal representative of his co-obligor has the right to have him brought before the court, that being ultimately liable, he may be made primarily liable for whatever portion of the debt may in equity be due from him. Philip P. Dandridge being jointly liable with said Andrew Kennedy, deceased, for the plaintiff’s demand is a necessary party to this suit.

The informal answer of said defendant, Andrew E. Kennedy, having been filed in the cause in accordance with leave to do so reserved in a former decree, and the court having given to it the force and efiect of an answer not replied to, by taking the allegations thereof as true, and basing Otwo of its decrees thereon, and having by its last decree in effect overruled his said defence wherein he insisted that.the court should talco no further proceedings in said cause, until the said personal assets belonging to the estate of said decedent produced by him and delivered to said administrator de bonis non should be collected and applied; and having decreed against the defendants as the heirs ol Andrew Kennedy, deceased, that unless they, or some one for them, do “within ninety days from the rising of the court,” pay to the plaintiff the amount of his said demand, the said land should be sold to pay the same, we cannot hold that the said decree as to the said Andrew E. Kennedy is a decree by default; and we therefore hold that his appeal must be entertained, and if the decree complained of be erroneous, he is entitled to have the same reversed.

Eor these reasons we are further of opinion that the said decrees of the 31st day of October, 1878, and of the 13th day of April, 1880, must be wholly set aside, reversed and annulled, and the cause must be remanded to the said circuit court with leave to the said plaintiff to amend his bill by making the said Dandridge and the heirs of said Andrew Kennedy and his widow, if living, parties defendants thereto, and to be further proceeded in, according to the principles announced in this opinion and according t.o the rules and principles governing courts of equity; and that the appellee, out of the assets of his intestate in his hands to be administered, do pay to the appellant, Andrew E. Kennedy, his costs by him about the prosecution of his appeal and supersedeas in this Court expended, and that the said appeal and superse-deas as to the said John W. Kennedy be dismissed as improvidently awarded.

Reveused. Remanded.