Opinion
(August Term, 1848.)
1. It is a decisive objection to a bill, praying for an account of an estate and relief against it, that it makes married women parties without joining their husbands.
2. The stating part of a bill ought to contain the case of the plaintiff, showing the rights of the plaintiff and the injury done to him, and by whom it was done; and, even then, the persons thus mentioned in the bill as the authors of the wrong complained of are not thereby made defendants, but only those against whom process of subpoena is prayed as the means of compelling their appearance, or, under our statute, publication in its stead.
3. But where in a case of this kind the defendant does not avail himself of this objection by refusing to appear, but appears and demurs, the court will not give him costs.
APPEAL from an interlocutory order of the Court of Equity of CABARRUS, at Spring Term, 1848, overruling a demurrer, Manly, J., presiding.
(232) Osborne and Thompson for plaintiff.
Wilson and Coleman for defendants.
The bill is entitled, "The bill of complaint of William H. Archibald against John W. Means, William C. Means, Margaret the wife of Cornelius McKee, Susan the wife of Samuel Hewings, Margaret the wife of M. W. Alexander, Marcus Means," etc., naming several other persons. It states that George Means, late of Mecklenburg County, died intestate in 1846, leaving a large estate, both real and personal; that he never had issue nor married, but that he had three brothers, namely, John, William, and James, and one sister named Margaret, who intermarried with Charles F. Alexander, and that all of them died previous to the intestate, George, and "that the defendants are the children of the said William, John, James, and Margaret, deceased, and are the next of kin and heirs at law of the said George, deceased, and as such were entitled to his entire estate." The bill then shows that the plaintiff is a judgment creditor of John W. Means, and first, (231) before filing the bill, which was in December, 1847, that he sued out a fieri facias, and that it was returned nulla bona. It further states that "the defendants," as the heirs of George Means, deceased, filed their petition in the court of equity to obtain a sale of the real estate for partition, and that by decree thereon the land had been duly sold on a credit and the sale confirmed by the court, and the clerk and master ordered to collect the price when it became due. The bill also states that William C. Means obtained administration of the personal estate of the intestate, George, and that it is worth upwards of $20,000; and that John W. Means had no visible property out of which the plaintiff's debt could be made by execution, nor any other means of paying the same, but out of his share of the proceeds of the sales of the land and his distributive share of the personal estate, as one of the next of kin and heirs at law of the said George, deceased; and that he refused to make any provision thereout for the security of payment of the debt to the plaintiff, but was endeavoring by fraudulent assignments and orders to evade the payment thereof. The prayer is for "the State's writ of subpoena to issue to the defendants" residing in this State, and that publication be made as to those beyond the State, commanding them to appear, etc., and answer, etc., and that an account may be taken of the personal estate in the hands of the administrator, and what is the amount of the distributive share of the said John W. Means in said estate, and that it might be decreed that the plaintiff's debt should be satisfied out of the share belonging to John W. Means of the personal estate or the proceeds of the real.
There was a demurrer for want of equity by John W. Means, which was overruled on argument, with costs; but by leave of the court he appealed.
The merits of the controversy between these parties cannot be determined in the present state of the pleadings. If any person can be deemed a defendant to the suit, a decisive objection to the bill is that it is against three married women, without making the husband of either of them a defendant. In the title of the bill it is said to be "against Margaret, the wife of Cornelius McKee," etc., but not to be against McKee himself, or the other husbands. Of course, as the husbands are necessary parties to the account, so as to render it obligatory upon all interested in the estate, the court ought not to entertain the bill and order the cause to an account without them. But the truth is that the bill does not properly make any person a defendant. The bill is entitled a bill against certain persons; but the title is no part of the bill, whether it precede the statement of the bill or be written on the back of it. The stating part of the bill ought to contain the case of the plaintiff, showing his rights, and the injury done to him and by whom it was done; and even then the persons thus mentioned in the bill as the authors of the wrong complained of are not thereby made defendants, but only those against whom process of subpoena is prayed as the means of compelling their appearance, or, under our statute, publication in its stead. Coop. Ch. Pl. 16; Beams Pl., 148. In the present bill no persons are named in the stating part of the bill as the heirs or next of kin of the intestate; but it is only stated that "the defendants" are the children of their deceased brothers and a sister of the intestate, and as such are his heirs at law and next of kin. In like manner in the prayer for process it is against "the defendants," without naming any person. So that in truth there is, strictly, no suit properly constituted in which the court ought to have decreed, or this person, John W. Means, ought to have demurred. The decree was therefore erroneous, and must (233) be reversed; but as we have observed that this is not an uncommon mode of stating a case and making parties in some parts of the State, and the appellant might have availed himself of the defect more properly by objecting to appearing, instead of demurring, the Court is not disposed to give costs in either court. We cannot, however, but express the hope that more attention will be paid to the framing of the pleadings in an orderly manner, and, to that end, that recourse will be had to the books of precedents of established authority, rather than to the loose and imperfect productions of the circuit.
PER CURIAM. Reversed.
Distinguished: Potter v. Everett, 42 N.C. 155.