Owen v. Riley's Ex'or

1 Va. Dec. 136 | Va. | 1878

Christian, J.,

delivered the opinion of the court.

The court is of opinion that no decree ascertaining and fixing the rights of W. D. Bartlett and Joseph P. Riley’s executor as to the bonds executed by Bartlett and payable to Joseph A. Yasse ought to have been rendered in this cause without first requiring that the personal representative of the said Joseph A. Yasse be made a party to this suit and be summoned to appear before the commissioner. The estate of Yasse may be directly interested in the question of the transfer of said bonds as whether in fact Bartlett had paid off the bonds in question, and his personal representative was a necessary and proper party and ought to have been before the court.

For this reason and without passing upon any other question in the cause, it is adjudged, ordered and decreed, that the decrees of the circuit court rendered on the 11th day of November, 1871, and on the 26th day of March, 1877, be and the same are reversed and annulled, and that the appellants recover of the appellees their costs by them expended in the prosecution of their appeal and writ of supersedeas here. And the cause is remanded to the said circuit court with instructions to said court that no further proceedings be had in said suit until the personal representative of the said Joseph A. Yasse shall by proper process be made a party to this suit or be notified to appear before the commissioner of said circuit court charged with taking the account directed in the cause, to assert his claim, if any he has, to the amount payable in the said bonds, executed by said Bartlett. And liberty is reserved to the parties interested to take any further and additional proof touching the assignment or transfer of said bonds or payment of the same by the obligor to said Yasse in his lifetime. All of which is ordered to be certified to the circuit court of Frederick county.