11 Ga. 645 | Ga. | 1852
By the Court.
delivering the opinion.
To a correct understanding of the question of Equity practice made in this record, it is necessary to state, that the bill was filed by Edward Carey, assignee of the Bank of Columbus, against the stockholders of the Chattahoochee Railroad and Banking Company, an extinct corporation, for the purpose of enforcing the payment of a large debt alleged to be due to the Bank of Columbus, as holder of the bills of the Chattahoochee R. R. and Banking Company. It seeks to enforce upon the stockholders a liability for the bills issued by the C. R. R. and B. Co. by virtue of a special clause in the charter of that Company, and at the same time to call in and apply to their payment the unpaid stock, according to the number of the shares held by the stockholders respectively. With such objects in view, a large number of persons, charged to be stockholders in the C. R. R. and Banking Co. are made parties defendants, and the bill asks that others when ascertained may be made parties. The cause coming on to be heard before the Chancellor below, the counsel for the complainant moved to strike from the bill, the name of John W. Sutlive, one of the defendants, and that the bill be dismissed as to him, upon the exhibition of the following proofs, to wit: “that John W. Sutlive is dead, and that he has no legal representative in this State; that he died some four or five years since, leaving a will in which he appointed his wife executrix, who was qualified some six or eight months after his death ; that she had married a man by the name of Munford, who is still living, and who had not taken letters on the estate of Sutlive; that they had not been granted to any one about a year since, and that the administration on his estate was in litigation on the question whether Mrs. Sutlive was, or was not, the representative; that suits were pending against Munford, as executor de son tort.” One of the witnesses further stated to the Court, that he thought he had recently seen a notice published, that some one had applied for letters of administration on his estate. The presiding
No case better illustrates both the rule and the exceptions than this case. The stockholders to the Chattahoochee Railroad and Banking Co. are very numerous. Some of them may be out of the jurisdiction — others dead, having left insolvent estates, whilst the representation of the estates of others who are dead, may be suspended by litigation at law; and other causes might exist, which would make it impossible or impracticable to bring them all before the Court. To require the plaintiff to stay his suit, to postpone his rights, until all are made parties, would be a virtual denial of them; and yet being all liable to contribute to the payment of his claim, if established, and having rights inter sese, which ought to be considered in the decree, there is the most obvious propriety in bringing them all in, if practicable. After all that has been said, it is manifest that any relaxation of the rule must rest within the sound discretion of the Chancellor, under the circumstances of cases, as they arise.
(See Boisguard et al. vs. Wall, 1 Smedes and Marshall’s Chancery Reps. 426, 427.)
Without farther reveiw of this question at large, I proceed to inquire, whether under any one of the exceptions, it was competent lo dismiss this bill as to the. estate of Sutlive.
There is no evidence in this record that such consequences would flow from adherence to the rule in this cause. Indeed from aught that appears, all the parties in interest were made parties to the bill — one having died, the question is whether it is indispensable to make his representative a party.
Ordinarily, therefore, it is competent for a party to force an administration; not of course when the administration is in litigation. It seems but reasonable, notwithstanding the evidence of the pending litigation, that the complainant should have shown some diligence in procuring a representation of Sutlive’s estate. As to the litigation itself, we are not informed distinctly as to its character. ' The witness says that the administration was in litigation, on the question whether Mrs. Sutlive was or was not the representative of the estate. We are. not informed how it originated — whether collaterally, in a suit pending against her, as executrix, or directly, upon an application to the Ordinary, for letters by some third person, with the will annexed — how long it had existed, and when it was likely to terminate. As this motion, as before stated, is addressed to the discretion of the Chancellor, his mind and conscience ought to be instructed as to the whole merits of the application, else he cannot exercise that discretion wisely.