38 S.C. 464 | S.C. | 1893
The opinion of the court was delivered by
The complaint of the plaintiff alleged ■that David A. Warner departed . this life, in Colleton County, .in this State, on the ,12th'day. of. July, 1890, and. that John 0. Warner, his brother, obtained • letters of administration .of his
The relief prayed for is, first, a judgment for plaintiff for the debt, due by intestate against the administrator; second, that the sheriff be enjoined from making a sale of the lands or any other property of the intestate; third, that Appleby & Company and all other creditors be enjoined from prosecution of their claims by action at law, and that all creditors be required to prove their claims in this cause; fourth, that the assets of said estate be marshaled, that a receiver be appointed, and the further settlement of said estate be had in this court; fifth, for such other relief, &c.; sixth costs.
This complaiut was verified, and, upon an application thereunder by the plaintiff to his honor, Judge Aldrich, at chambers, on 27th January, 1892, an order was granted, requiring
At the hearing of this rule to show cause before Judge Witherspoon at chambers, the plaintiffs submitted an affidavit from one of plaintiff’s attorneys, wherein, amongst other things, it is alleged on information and belief that he has heard that D. A. Warner had other lands besides the tract advertised by the sheriff for sale, but that one parcel has been assigned to the family of the intestate as a homestead, and the other sold to a firm in Charleston under a self-closing mortgage, and all without objection on the part of the administrator. The defendants, Joel C. Warner, as administrator, and Appleby & Company, made very full returns, and amongst other things showed that the respondent, administrator, had caused an appraisement of the personal property of intestate to be made and returned to the Probate Court; that, on his petition, a sale was ordered by the Probate Court, and that he made such sale, but that of the proceeds of the same ($1,035), the sum of $1,014 was consumed in paying a chattel mortgage thereof, held by Sileox & Carrigan, for $1,000, and the costs of sale, leaving a balance on hand of $24; that he had collected from the rents due the estate of his intestate during the year he died, the sum of $167, and of this amount had paid $53 for taxes, leaving a balance of $113.85. The $24 (balance of sale) and the $113.85 had been applied to payment of counsel fees and a sum reserved for taxes.
The returns go further, they admit, the judgments of Appleby & Company, on two accounts held by that firm against intestate; that they have been transcripted and lodged in the office of the clerk, &c., and execution issued, land levied upon, advertised for sale, and no step taken by the administrator to prevent two judgments for $119 selling a $5,000 tract of land. Yet he says the plaintiff has abundant remedy at law, or in the Probate Court, and no status whatever in the Court of Equity.
On the hearing of the return and the rule, his honor, Judge Witherspoon, agreed with the respondents, and dismissed the rule dissolving the injunction and refusing the appointment of a receiver. The plaintiff now appeals.