Jones v. Etheridge

6 Port. 208

Opinion

COLLIER, C. J.

It appears from the record, that John Jones was appointed administrator of the estate of Absalom Jones, deceased, and in the course of his administration, gave two bonds, upon the demand of the Orphans’ court, with different sureties in each, — • that afterwards his letters of administration were revoked by the court, and the defendant appointed administrator in his stead, and upon being called on for a settlement of his accounts, the Orphans’ court rendered two several decrees against him, in favor of the defendant: the one against the plaintiff and his sureties in the first bond, for the extent of his indebtedness up to the time of their discharge — the other for his indebtedness, accruing subsequently, against himself and his sureties, in the second bond. To .reverse both of which, but one writ of error has been sued out, by the plaintiff and his sureties, in both bonds.

A question has been raised by the defendant, whether this court can take jurisdiction of the case, or should not rather dismiss it, for a misjoinder of plaintiffs in error.

There is certainly no community of interest between the sureties in the two bonds, and the liabilities fixed upon them respectively, by the decrees, are different, both in'-their amounts and in the foundation on which they rest. And it is clear, that they could not be jointly charged on them, in an action in the usual form, nor could the parties to these decrees join in prosecuting an action upon demands due them severally. This being the case, it is difficult to conceive of any reason why they shall join in a writ of error.

Again : they could not unite in assigning error,— what would be available for the sureties in the first bond, must be unimportant to those in the second, and so vice versa. So, there might be error in one decree, while the other was free from objection; how should, the judgment be rendered, in such an event, or the costs be taxed Í These are difficulties not easily gotten over, here, where the,unsuccessful party alone, is chargeable with costs.

In Smith vs Hearne,

Footnotes

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* two writs of error were issued, and two judgments sent tip in one transcript, and the writs were dismissed ; the court not being autho-rised to sever the judgments, or able to determine to which judgment the writs respectively applied.— And in DeSylva vs Henry,† a writ of error brought up two distinct judgments, between the same parties, and was dismissed.

We are of opinion, that the reasons against retaining this case, for a decision upon the merits, are stronger than in the two we have cited, and therefore, direct a dismissal of the writ of error.

2 Stewart R. 169.

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4 Stewart & Porter, 409.