13 Fla. 110 | Fla. | 1869
delivered the opinion of the Court.
This is a suit between judgment creditors of the administrator of the husband as plaintiffs, and a judgment creditor of the administrator of the wife, the heirs and distributees of both husband and wife, and the executive officer of the court who levied a fi. fa. of the creditor of the wife upon the property in dispute, as defendants.
It is alleged by plaintiffs that the husband having purchased this property in his life-time, caused deeds of conveyance of the same to be. made to the wife. The bill seeks 10 enjoin the judgment creditor of the administrator of the wife, who had caused the coroner, the sheriff being disqualified, to levy upon a part of this property, from selling the same, alleging that the property was the subject of a voluntary conveyance between husband and wife when the husband was indebted, and it seeks to subject the property to sale, to satisfy the judgments against the administrator of the husband, rather than the judgments against the administrator of the wife. The relief prayed was. granted, the property was directed to be sold, and the proceeds applied to the claim of the judgment creditor of the administrator of the husband who brings the suit. From this decree, this appeal is prosecuted by Herndon L. Henderson, administrator de bonis non of Thomas Gaskins, deceased, and the “ defendants now living,” without naming the surviving defen
Upon this record and for the purpose of this proceeding, the presumption is that all the parties were alive at the date of the decree. There is no suggestion of death in the record. Everything is regular, and although the fact may be that the parties died before decree, yet we cannot in this proceeding hear a suggestion of that fact against the record. In such a case, where, from the subsequent proceedings had in prosecuting the appeal, it is apparent that the death of some of the parties has occurred, the presumption is that the death occurred after decree. "Were it apparent from the record that a decree had been made in the absence of necessary parties, the usual practice in the United States is for the appellate court to reverse the decree, and to remand the case with directions or leave to make proper parties. (7 Cranch, 97.)
The question here, so far as the administrator de bonis non of Gaskins is concerned, is what course must we pursue where the death of one of the defendants has occurred after decree, and the legal representative, without reviving the suit, enters an appeal to this court. Can the representative of a deceased defendant, without any proceeding making Mm a party in the original jurisdiction, enter an appeal and bring the case to this court for review ? The suit, by the
What we have said refers only to the standing of the administrator de bonis non of Gaskins in this court. This is
Can we hear an appeal unless the record discloses the persons whose interests and property our decree is to affect ? We cannot thus enter judgments. It may be that the defendants living were the coroner and heirs at law of the husband and wife. If this be so, the coroner being the executive officer of the court to conduct the sale under the judgments at law, is brought into the court of equity so that Ms acts may be controlled rather than to affect any interest lie has in the subject matter of the suit. We do not think this officer a necessary or a proper party. In this aspect of the case, it would be very doubtful, too, whether the heirs at law of the husband and wife are necessary parties in a case of this kind, real estate being under our statute assets in the hands of executors or administrators equally liable with personal property to an execution against the executor or administrator. (2 Cranch, 407.)
If this should be so, how could this court make any order affecting the estates of the deceased wife or husband without their administrators are parties, and when no legal representative of their’s is before the court % In such an event, the court could make no order affecting the decree in this ease which would not necessarily affect their estates, as real estate, which the plaintiff alleges belongs to the estate of the
Herndon L. Henderson, administrator de bonis non of Thomas Gaskins, deceased, never was in a situation to prosecute this appeal. The failure to state the names of the parties defendants living at the date of the entry of the appeal, renders the record so defective for want of certainty as to the parties that are prosecuting the appeal, (it being prosecuted by the “ defendants now living,”) that any order made by the court would be made in a case where we were totally unadvised by the record as to the individuals it would affect.
The appeal is dismissed.