Aldrich v. Hassinger

OPINION OF THE COURT, BY JUDD, C.J.

This is a bill of revivor, to bring to a termination an old case in equity to declare a trust against one W. James Smith under a deed conveying land made by one Martha O. Swinton. The testimony had all been taken, and, owing to the resignation of the judge who heard it, had .not been decided. In pursuance of the bill of .revivor the case was brought before Circuit Judge Carter on the previously taken evidence, who heard and decided-it in October last. It was then brought to this court by appeal *273 from the decree which ordered a conveyance of the land in controversy to be executed by Priscilla Hassinger, Henrietta Ross and Annie H. Turton (heirs of W. J. Smith then deceased) to the petitioners Mary C. Aldrich, Helen B. King, Douglas K. Brown and Norman Brown.

In the bill of revivor the plaintiffs named in the caption are “Mary C. Aldrich, Helen B. King, Harriet N. Brown, Henry S. Swinton, Charles E. S. Swinton, Helen M. Seal, Douglas K. Brown and Norman Brown by William O. King their next friend.” The bill is signed “W. C. King,” and the jurat is signed “W. O. King.”

On the case coming before us Messrs. O. Creighton and A. Rosa moved that they be allowed to enter an appearance for Douglas K. Brown as he is no longer a minor; and on this being allowed he filed a special plea as follows: “And now comes Douglas Brown who heretofore at the institution of this action was a minor and was made a party plaintiff by his guardian ad litem W. O. King,- and interposes this special plea and motion specifically reserving to himself all rights and privileges herein and to the property involved in this action and says: That at the time of the commencement of this suit he was a minor and has since become of legal age; that the allegation in the plaintiffs’ bill herein in which he is described as a nephew of Martha Swinton, deceased, is not trae as he claims and alleges to the best of his knowledge, information and belief that he is the son of said Martha Swinton and her sole heir at law. That the said Martha Swinton died intestate and as such sole heir at law he is entitled to the whole of the estate real, personal and mixed of which said Martha Swinton died possessed and seized. That he does not consent to be a party plaintiff herein and asks that his name may be stricken from the record as plaintiff.”

An answer to this plea was filed by the other plaintiffs setting up laches of D. K. Brown and other matters. Objections were also made to the caption and verification of the bill of revivor.

"Kinney & Ballou for all plaintiffs but Douglas K. Brown. C. Creighton and A. Rosa for Douglas K. Brown. W. O. Smith for Mrs. Hassinger. (X Brotan for Mrs. Turton. A. G. M. Robertson for the other defendants.

"We hold that the bill of revivor is defective for want of signatures thereto, that, while it purports in its caption and ¡introduction to be brought by eight persons as plaintiffs, in .'fact none of said alleged plaintiffs, except W. O. King, have ¡signed it either in person, or by counsel, or by the next friend, that owing to this defect Douglas K. Brown has never been a party plaintiff in the suit of revivor, although the bill of revivor in its caption and body purports to name him as such, and that for this reason and also because of the matters alleged in his special plea, his name should be stricken from the record as a party, plaintiff, and further that the decree appealed from should be vacated, and the bill remanded to a Judge of the Circuit 'Court for such amendment as plaintiffs may be advised to make and such further proceedings as may be necessary.