Miller v. Keith

26 Miss. 166 | Miss. | 1853

Mr. Justice Fisher

delivered the opinion of the court.

This case is submitted to the court on a motion to dismiss the appeal, on the ground that it is not shown by the record, that the appellant was interested either as a creditor or legatee in the estate, upon which the court below granted letters of administration to Keith.

Upon a close inspection of the record it will be seen, that the appellant was not even a party to the proceedings in the court below. He withdrew his petition, praying a grant of letters of administration to him on Watson’s estate. It was by this petition that he made his appearance in court; and when He withdrew it, we must suppose that he abandoned every thing sought to be accomplished thereby, and from that moment ceased to be a party to the record.

The next question to be considered is, whether he was in law a party defendant to the petition presented by Keith for the same purpose. All who were creditors, legatees, or dis-tributees of the estate, could certainly make themselves parties to this petition. As none others would be interested in the estate, they could not be regarded as parties, for the plain reason, that they could not be benefited or injured by the action of the court.

There is nothing in the record which can be treated as evidence, showing that the appellant was either creditor, legatee, or distributee in the estate; and while we are of opinion that the court erred in not following the suggestions thrown out by the appellant, as amicus curice, yet this error can only be corrected upon the application of a party who can profit by its correction; and not upon the application of a stranger, or one whose advice has not been properly heeded.

Motion sustained, and appeal dismissed.