28 Ga. 516 | Ga. | 1859
delivering the opinion.
Joseph IT. Carter, the appellant from the Court of Ordinary, having died pending the appeal in the Superior Court, and no person having been made a party in his place, the first question is, whether the case is properly before this court.
We think that the death of Carter, the appellant, had the effect to abate the suit; or, the effect to suspend it until a new party was made; or, until the proper effort to obtain a new party had proved unavailing.
If the death of Carter had the effect to abate the suit, it carried the suit out of the court below and there remained in that court, no case to be brought to this court. On this hypothesis, then, it is clear that the case is not properly before this court.
If the effect of Carter’s death was to suspend the suit until a new party was made, then, it is equally clear that the case is not properly before this court, for no new party was made; and the case was, therefore, in a state of suspension when it was brought into this court, and a case in that state is in a state that does not admit of its being brought to this court.
If the effect of Carter’s death was to suspend the case until the proper effort to obtain a new party had proved unavailing, then, still the case is not properly before this court; for no effort at all had been made to obtain a new party. On the hypothesis of a suspension of the suit, the person or persons entitled to be made parties in Carter’s place were all such persons as had an interest in the estate on which Glisson was seeking to become administrator, — the estate of William H. Carter. These were, the creditors of William; his nest of kin; and the legal representatives of Joseph; for although Joseph’s right to claim the administration, for himself, died with him, yet not so did his right to dispute the claim of Glisson to the
Another thing must be mentioned. The case is an ex parte case. Can any ex parte case be brought to this court ? If so, how is it to be done ? There is no one on whom to serve the bill of exceptions.
Case dismissed.