21 Ind. App. 23 | Ind. Ct. App. | 1898
James W. Harshman, appellee’s decedent, lost his life by being thrown from a wagon in which he was riding. The accident resulting in his death was alleged to have resulted from the negligence of appellant. Jonathan Harshman was appointed administrator of his estate, gave bond, and assumed the duties of the-trust. The decedent’s estate consisted of personal property and a half interest in a gas well. The record shows that the estate was solvent, and, after payment of all debts, there remained over $600 for distribution to the heirs. On February Y, 1895, the administrator filed his final re
The action against appellant was finally determined in the Huntington Circuit Court and resulted in a judgment against appellee for costs. March 10, 1897, appellant filed in the clerk’s office of the Delaware Circuit Court an itemized statement of the costs for which judgment had been rendered in its favor, which statement was accompanied by a certificate of the clerk and duly verified. This statement of costs was filed as a claim against the estate, was passed to the allowance docket, where it was disallowed by the administrator, and was subsequently transferred to the issue docket for trial. Trial was by the court, resulting in a finding and judgment for appellee. Appellant’s motion for a new trial was overruled and such ruling is assigned as error. Some technical questions are urged to the sufficiency of the motion for a new trial; but, waiving such objections, we think the motion fairly presents the question of the sufficiency of the evidence to support the judgment. There is no conflict whatever in the evidence, and this is conceded by appellee; hence no question is presented as to the weight of the evidence, or as to this court weigh
In all litigation the law contemplates that costs accruing shall be chargeable to some one connected with such litigation. In this State the liability for and pay-' ment of costs are regulated by statute, and the general rule is that the losing party is chargeable with its payment. If the decedent had survived the accident which .resulted in his death, and prosecuted an action for his injury, and such action had resulted adversely to him, he would have been liable to appellant for all costs incident to the suit. Here the administrator brought the action as his personal representative for the benefit of his next of kin. True, under the statute, if a recovery had been had, the amount recovered would not have gone into the general fund for the payment of debts, etc., but would have been distributed to the heirs or next of kin, according to their interests, upon the final settlement of the estate. The fund thus derived, although for the benefit of the next of kin, would have been chargeable with the necessary expense incurred by the administrator on account of his services, attorney’s fees, and expenses of administration. Yelton, Adm., v. Evansville, etc., R. Co., 134 Ind. 414. In that case Yelton was the administrator, ahd brought an action for the death of his decedent. The decedent in that case left no children, but a widow, who was his sole heir, and whatever damages were recovered
Prom the principles announced, and from the language used in the above quotation, it seenls plain, and is a reasonable inference, that, where the rights of creditors do not intervene, the general fund of the estate may be resorted to in paying the costs of such an action, where such costs are adjudged against the estate. Such actions are brought for the benefit of the widow and the children, for in this case the widow and children survived, and would have been entitled, under the statute, upon final settlement, to receive their respective interests, if a recovery had been had.
The estate here was solvent. All debts have been paid, and there remained funds for distribution. The
It is further urged by appellee that appellant’s judgment for costs is barred, because it was not filed before the filing of the final report of the administra
Appellee further insists that there was no final judgment rendered below, and hence" the appeal will not lie. We have carefully examined this question, and are satisfied that the judgment from which the appeal is prosecuted is amply sufficient. Looking at the whole record, we have reached the conclusion that the merits of the case demand a new trial. The judgment is therefore reversed, with instructions to the court below to sustain appellant’s motion for a new trial.