
    CASE 25 — PETITION, EQUITY
    DECEMBER 31.
    Crabtree et al. vs. Banks’ Administrator et al.
    APPEAL FROM DAVIESS CIRCUIT COURT.
    1. Under the act of December 16th, 1857, (Session Acts, 1857-8, p. 2,) a cross-petition is not allowed a defendant against hi» co-defendants, except for a cause of action affecting the subject-matter of the main or original action.
    
    2. In' a suit in equity brought by a creditor of the estate of a testator against the devisees, to recover the debt duo the creditor, in which the administrator with the will annexed is also made a defendant, the administrator cannot, by cross-petition against his co-defendants, the devisees, recover a balance alleged to be due-him from the estate npon a former settlement; nor can the devisees, in such proceeding, surcharge the settlement. It must be by a direct proceeding.
    Mary Banks recovered judgment against J. V. Banks, administrator with the will annexed of C. P. Banks, upon a note executed by the decedent in his lifetime. An execution upon-the judgment was levied upon two slaves as the property of the estate, but, before the sale, suit was instituted by a claimant, who recovered then. Subsequently Mary Banks brought this action in equity, alleging that the administrator of C. P. Banks had no assets in his hands, and sought to recover the' amount due her upon the judgment from the devisees, to whom she alleged estate had come. After her death the action-was revived in the name of her personal representative, and upon the hearing judgment was rendered in favor of her estate for the amount claimed against the devisees. In the same action, J. Y. Banks, the administrator of C. P. Banks, having been made a defendant, made his answer a cross-petition against the devisees, and prayed judgment against them for a balance-found due him upon settlement as administrator several years before. The devisees endeavored to surcharge the settlement, and alleged that the administrator had committed a devastavit. .He having died, and the cross-petition being revived in the name of his administrator, judgment was rendered in his -favor against the devisees for said balance. The devisees prosecute this appeal.
    Jambs Harlan and Geo. H. Yeaman for appellants—
    1. The administrator of Mrs. Banks was not entitled to a judgment against the devisees.
    
      H. The settlement with J. V. Banks, as administrator of C, P. Banks, was successfully impeached and surcharged.
    3. The record shows two judgments for the same debt in full force against appellants.
    G. W. Williams for appellees—
    I. The judgment in favor of the administrator of Mary Banks against the devisees is correct.
    
      2. The administrator of J. V. Banks was entitled to the judgment rendered in his favor against the devisees for the balance due J. Y. Banks upon settlement as administrator of C. P. Banks. That settlement was not successfully assailed.
   JUDGE WOOD

DELIVERED THE OPINION OP THE COURT:

We perceive no material objection to the judgment in favor of the administrator of Mary Banks, deceased, against the devisees of Clement P. Banks.

Judgment at law had been recovered upon the demand, and there was no proof of payment either before or after judgment.

The demand appears to be a just one against the estate of C. P. Banks; it remains unsatisfied; the devisees received under the will estate more than sufficient for its payment; it had been shown that the personal representative of C. P. Banks had no assets out of which satisfaction could be obtained.

The judgment in the suit of Crabtree, &c., against the sheriff of Daviess for the two negroes, did not constitute a bar to this action.

That was an action to recover the negroes which had been levied on by the sheriff. It was decided therein that said negroes belonged to the plaintiffs, and were not liable to the execution against the administrator; but the judgment in favor of Mary Banks, upon which that execution was issued, remained intact. Its validity was not in question in that action.

Nor is it any defense to the suit of Mary Banks that the administrator of C. P. Banks has committed a devastavit, or otherwise improperly managed his estate. The copying twice of the judgment of the 13th March, 1857, was clearly a mistake of the clerk, and shows no error of the court.

The judgment in favor of the administrator of Mary Banks against the devisees of C. P. Banks is affirmed; but the judgment in favor of the administrator of John V. Banks is erroneous.

The cross proceeding by which that judgment was obtained was unauthorized by the Code of Practice, and was therefore erroneous. (See Civil Code, sec. 117; Sanders vs. Sanders, 17 B. Mon., 10-14.)

The error is not cured by the act of the last general assembly, approved 16th December, 1857.

By that aet cross-petitions are allowed when a defendant has a cause of action affecting the subject-matter of the main or original action.

In this case the cause of action stated in the cross-petition did not affect the subject-matter of the action in the name of Mary Banks against the devisees of C. P. Banks.

The two causes of action were separate and distinct. There was no connection between them, and they should not have been blended in the same action.

If J. Y. Banks had a demand against the devisees of C. P. Banks, he could have asserted it in his separate action, and it was his duty so to do.

And, upon the other hand, if the devisees desired to surcharge the settlement made by the administrator with the will annexed, they could have brought their action for that purpose, or have relied upon the same matter, in any action which he might bring against them for the recovery of the alleged balance found in his favor upon the settlement aforesaid.

But the suit of Mary Banks should not have been obstructed or hindered by this contest between the administrator and the devisees of C. P. Banks.

The judgment in favor of the administrator of J. V. Banks is reversed, and that branch of the proceedings is remanded with directions to dismiss the cross-petition filed by J. Y. Banks against the devisees of C. P. Banks.  