Glenn v. Smith

Goldsborougii, J., delivered the opinion of this court. This case had its origin in a suit instituted in the court of chancery, in 1837, by John Glenn, administrator of Frederick Lindenberger, against George Hebb. The complainant, by his bill of complaint, prayed the court to pass a decree that the defendant account with the complainant for the partnership effects of the late firm of Hebb & Lindenberger, in his hands, as surviving partner of the firm. After sundry proceedings were had to bring the caúselo hearing, all of which are stated in the record in this case,, the chancellor, by his decree, dismissed the bill.

An appeal ²⁸⁰ was taken, and this court, at December session 1 841, reversed the decree of the chancellor. See 12 G. & J., 271 . The chancellor, in view of the decision of this court, passed a decree that the defendant account with the complainant. The cause was proceeded with, being referred to the auditor to state the account.

It continued thus pending- until the defendant, Hebb, died, on the 17th day of May 1846. On the 9th of June 184(3, letters of administration on the personal estate of Hebb, were granted to Samuel P. Smith, and on the 12(h of June, of the same year, the death of Hebb was suggested. The complainant filed his bill of revivor and supplement on the 5th of May 1849, against the administrator, and also against the widow and heirs at law of Hebb, stating, as supplemental matter, that Smith, the administrator, had settled his account with the orphans court, and distributed the personal assets to the widow, and heiis at law of Hebb, who are infants, regardless of the pendency of the chancery suit; that Smith was also the guardian of the said infant children, and that the assets are either in the hands of Smith, as administrator, or in the hands of the widow and Smith, as guardian,, and, in either case, liable to the payment of the complainant's-claim, when it shall be ascertained. It further alleges that the personal estate of George Hebb is not sufficient to pay the debt, and that Hebb died seized and possessed of a large amount of real estate.

The bill then-prays for a revivor, that a decree to account may be carried into effect, and that the real estate may be sold, for the payment of the debts. The answers of the defendants were filed, and, by agreement, the cause was referred to a special auditor, who filed his audit on the 6th of December 1852. Exceptions to the auditor’s report were filed by the defendants in January 1853, and on the 8th of July 1853, the complainant died. No further proceedings were had in the court of chancery, the office of chancellor being abolished by the Constitution, and, by its provisions, the Legislature was required to pass all laws requisite to dispose of cases and proceedings in. the ²⁸¹ chancery court then undisposed of and unfinished, and that the same be transmitted to the several comities, in such manner and under such regulations as may be deemed necessary nnd proper.

The bill of revivor and supplement was removed to the circuit court for Allegany county, which court took cognisance of the same, and the present bill of revivor was filed by the appellant., as administrator de bonis non of Frederick Lindenberger, on. the 18th of April 1855. The defendants severally filed their answers to this bill of revivor, to which the complainant put in a replication. A commission to take testimony was issued, and testimony taken thereunder. Upon the final hearing of the cause, the Hon.

Thomas Devecinon, as special judge, passed a decree dismissing the bill, and from that decree the complainant appealed to this court. The first question which presents itself, is, whether this suit was properly transmitted, under the provisions of the Constitution and the Acts of Assembly passed in pursuance thereof? That must be considered undisposed of, in the view of the Constitution, which may be proceeded with. The Act of 1820, ch. 161, secs. 4 and 5, forbids the idea of abatement, and provides a medium through which a cause in chancery may be prosecuted.

See, also, Story’s Eq. PL, 354. If this suit did not abate, then, under the Constitution, it must be regarded as undisposed of and unfinished; and when removed, as it was under the Act of 1854,