United States Supreme Court Cases & Opinions

U.S. Supreme Court

Taylor v. Savage, 42 U.S. 1 How. 282 282 (1843)

Taylor v. Savage

42 U.S. (1 How.) 282

Syllabus

Where a decree is passed by the court below against an executor, being the defendant in a chancery suit, and before an appeal is prayed the executor is removed by a court of competent jurisdiction, and an administrator de bonis non with the will annexed is appointed, all further proceedings, either by execution or appeal, are irregular until the administrator be made a party to the suit.

If an execution be issued before the proper parties are thus made, it is unauthorized and void, and no right of property will pass by a sale under it.

The administrator cannot obtain redress by application to this Court, but must first be made a party in the court below. This may be done at the instance of either side.

After he is thus made a party, he may stay proceedings by giving bond, or the complainants may enforce the decree if the bond be not filed in time.

It is not clear that a complainant who has appealed from a decree in his favor, in the hope of obtaining a larger sum, can, pending the appeal, issue execution upon the decree of the court below.

Page 42 U. S. 284