45 Vt. 60 | Vt. | 1872
The opinion of the court was delivered by
In a trustee suit commenced before a justice of the peace, an appeal, whether by one of the principal parties, or only by the trustee or claimant, brings the whole case into the county court as to all the parties. Where the appeal is by either of the principal parties, and no appeal by the trustee or claimant, the case is open for trial in the county court, not only as between the
Where the appeal is only by the trustee or claimant, the statute provides that the judgment of the justice against the defendant shall be affirmed by the county court without costs. This provision of the statute shows that in such appeal the whole case is brought up, and that in order to hold the trustee chargeable and have a judgment against him, there must be a judgment rendered by the county court against the principal defendant. No judgment can be rendered against a party who has deceased pending the suit. In such case, the party deceased is no longer in court, or a party in the action'; and even if the cause of action is such as survives, still, no judgment can be rendered after the decease of the defendant, till the executor or administrator of the deceased party appears in the cause to represent him, or until such executor or administrator has been by order of court duly cited to appear, and has made default. But whether the executor or administrator has been cited in or not, if commissioners have been appointed on the estate of the deceased defendant, the suit, by the express provision of the statute, must be discontinued and the case go before the commissioners. The few exceptions in the statute, of certain forms of action that cannot be tried by the commissioners, have no application to the case at bar. It is claimed by plaintiff’s counsel that the affirmance of the judgment against the principal defendant, in cases like the present, is but matter of form, and that the statute referred to requiring the discontinuance of cases by death, does not apply to such appeals. Shelden v. Shelden & Trustee, & Claimant, 37 Vt. 153, was an action of general assumpsit for the recovery of a promissory note only, executed by the defendant to the plaintiff (although no specification had been filed), in which suit a trustee was summoned at the first term of the county court; a default was entered against
Judgment affirmed.