10 Paige Ch. 101 | New York Court of Chancery | 1843
Even if the decision was right in relation to the demurrer in this case, there was nothing to justify the making of a final decree without giving the defendants an opportunity to come in and deny the allegations made against them in the bill. In that respect therefore the decree appealed from is clearly erroneous.
But I think the order overruling the demurrer was itself erroneous, as there is no distinct averment in the bill that the claim for which the complainants recovered a verdict and judgment against Kenyon, as survivor, after the death of Ballantyne, was in fact a debt which was due from Kenyon and Ballantyne jointly at the time of the death of the latter. The recital of the recovery of the judgment against the survivor, which in the record of the judgment, of course purports to have been obtained upon a joint promise, is not such an averment of the existence of a joint debt as the defendants could safely take issue upon. For the production of the judgment record itself woúld establish all that is alleged in the bill, even if there never was in fact any joint indebtedness originally. A verdict obtained against the survivor, after the death of Ballantyne, was no evidence of a joint indebtedness against the latter. For his representatives had no right to interfere with the suit in any way, either to contest the existence of a joint promise originally, or if one had existed to show that it was perform
The complainants upon showing the existence of a joint debt against Kenyon and Ballantyne at the time of the death of the latter, and showing also, as he has done in this bill, that Kenyon is wholly destitute of property, will have an undoubted right to claim payment out of the property of the decedent, whether such debt was a partnership debt or a joint indebtedness of any other description. But to entitle the complainants to any relief against the estate of the decedent they must amend their bill, by stating the existence of a joint indebtedness by Kenyon and Ballantyne to them, and stating the nature and particulars of that indebtedness, in the same manner as if no suit had ever been commenced thereon ; to enable the defendants to make a proper defence thereto if they have any. And if such indebtedness is not admitted by the answer, the complainants must be prepared to establish it by proof in the ordinary way.
The decree appealed from is therefore reversed with costs, and the demurrer allo’wed. And the complainants must pay the costs, including the costs upon the demurrer, and amend their bill within sixty days, or the bill must be dismissed with costs to be taxed.
Decree accordingly.
