Citation Numbers: 46 Ky. 209
Judges: Ewins
Filed Date: 10/24/1846
Status: Precedential
Modified Date: 7/24/2022
delivered the opinion of the Court.
This case was formerly before this Court, and reversed upon the single ground that the Circuit Court had erred in excluding the testimony of Goodloe, a removed administrator. The case is repotted in 5 B. Monroe, 488. Upon the return of the cause on the second trial, additional evidence was offered, the object of which was to make out the interest of Goodloe, and he was again excluded, and Anderson’s administrator has again appealed to this Court, and it is now urged that under the statute, the suit may be prosecuted jointly against the removed ■administrator and the administrator de bonis non, and if so, Goodloe, as a party, should be excluded.
Whatever advantages might result to the creditor in reviving and prosecuting his suit against the newly appointed administrator, in conjunction with those that were removed, such a proceeding is not specially provided for in the act, nor are we inclined to think that it was within the contemplation of the Legislature, and if it might be' done without doing violence to the provisions of the statute, it was not done in this case, but the suit revived and prosecuted alone against Boyle, and judgment recovered against him alone. If the suit was intended to be revived and prosecuted against all, there surely should have been some notification to the removed administrator, or indication of an intention to proceed against all.
The additional proof advanced, does not take the case out of the operation of the principle settled by this Court, as to the interest of Goodloe, when the case was formerly before us. There is no satisfactory proof that Boyle has not in his hands sufficient assets to pay the judgment, in case a recovery should be had against him. On the con. irary, if he or the removed administrator have done their
The judgment is reversed and cause remanded, that a new trial may be granted without the payment of costs.