Opinion
11-27-1824
Cunningham v. Patteson
Wickham, for the appellant. Johnson, for the appellees.
This was an appeal from a decree of the Staunton Chancery Court.
Patteson and wife filed a bill against the surviving children and grand-children of Samuel Cunningham, deceased, for a division of a certain tract of land, which, they alledged, had belonged to the said Samuel, in his life-time. In praying process, some of the defendants were omitted, and others mentioned by improper descriptions; as the opinion of this Court sufficiently sets forth. No notice was taken of these errors in the Court of Chancery; but, the Court made an interlocutory decree, that commissioners should divide the land, in certain proportions, between the children and grand-children of Samuel Cunningham, deceased. Cunningham, one of the defendants, appealed to this Court.
Wickham, for the appellant.
Johnson, for the appellees.
OPINION
Cabell, Judge
The evidence in the cause abundantly proves, that Samuel Cunningham was, at the time of his death, entitled to an undivided moiety of the land in the bill mentioned. As he died intestate, that moiety descended to his children and grand-children. The Court, therefore, would not hesitate to affirm the decree of the Chancellor, had proper measures been taken to convene all necessary parties. But, it is stated in the bill, that Letty, one of the daughters of the said Samuel Cunningham, had married John Grear, and had died, leaving two children, viz: Isabella and Letty, who intermarried with Garn Beatty. Yet, the bill, when it afterwards proceeds to make parties, prays process against Letty, wife of Garn Beatty, as a feme sole, under the name of Letty Grear; and Isabella Grear, a feme sole, is made a party as the wife of Garn Beatty; and the order of publication was made accordingly. There was no order of publication, whatever, as to another absent defendant, viz: Samuel Cunningham, a grand-son of the aforesaid Samuel Cunningham. The decree of the Chancellor, therefore, although correct in principle, upon the case as at present exhibited, was premature, and must consequently be reversed. But, this being an appeal from an interlocutory decree, which is only allowed to prevent the payment of money or change of property, or to settle principles, and this Court being of opinion that the principles of the cause were rightly decided by the Chancellor, the appellees must recover costs, they having substantially prevailed. Had the appellant, at the hearing of the cause, brought to the view of the inferior Court, the defects in the bill and in the order of publication as aforesaid, they would, doubtless, have been there amended or supplied. Not having done so, he shall not lie by and take advantage of them in the appellate Court, to throw on the opposite party the costs of an appeal, which the law never intended to allow for the correction of such defects.