Fellows v. Shelmire

5 Blackf. 48, 1838 Ind. LEXIS 31

• Court: Indiana Supreme Court
• Decided: November 24, 1838
• Status: Published

Opinion

Blackford, J.

Mrs. Shelmire, as administratrix of her husband, filed a bill in chancery against the surviving partners of the intestate, and against the administrators of his deceased partners. On the default of some of the defendants, the bill was taken for confessed against them all; and a final decree, without any proof, was rendered against them for 2,552 dollars.

Several errors are assigned, but we shall notice but one of them.

There is not sufficient certainty in the principal charge of the bill to authorise the decree.

S. Judah and J. A. Brackenridge, for the plaintiffs. A. Kinney and J. Law, for the defendant.

The bill alleges that after the intestate’s death, the surviving partners divided the stock of the company, consisting of debts due them, lots, lands, notes, &c., and allotted a share of a stated value to the intestate’s estate. The principal object of the suit is to recover the amount of the share so allotted to the intestate’s estate, and the decree is, inter alia, for the amount of the share so valued. The bill does not show, however, what became of the intestate’s part of the stock ; nor by what authority the proceeds of the real estate of her intestate are claimed by the administratrix. The uncertainty of the bill as to these matters, is sufficient to reverse the decree. Pegg v. Davis, 2 Blackf. 281.

There are other objections made to the bill, but we have not examined them.

Per Curiam.

The decree is reversed, &c. Cause remanded, with leave to the complainant to amend her bill.