#### Clements v. Powell’s Adm’rs.

November, 1837,

Richmond.

(Absent Oabeij, and Parker, 3.)

Continuances* — Insufficient Ground of Continuance for Administrator — Case at Bar. — In a summary motion ag-ainst administrators for money paid by plaintiff Cor defendants’ intestate, it is no sufficient ground Cor a continuance, that defendants had qualified only some seven or eight months before, and so had not had time to settle their accounts of administration. and that they desired to defend themselves on the ground of want of assets to pay the debt, without offering any plea, or affidavit, that the assets were insufficient.

Appellate Practice — Reversal for Refusal of Continuance-Judgment of Appellate Court. — But, if it had been error in the county court, to refuse a continuance for defendants, in snch case, and to proceed to judgment for plaintiff, yet it was error in the circuit court, reversing the judgment for that cause only, to give final judgment for defendants, instead of sending the cause bach to the county court for a new hearing,

This was a motion, tinder the statute providing a summary remedy for sureties against their principals, *1 Rev. Code, ch. 116, by Clements against the administrators of Powell, made in the county court of King William, upon notice duly given, at June term 1830, to recover 185 dollars, which Clements had paid for Powell in his lifetime as his surety. The defendants appeared in pursuance of the notice, and moved for a continuance of the motion till the next term ; which the court overruled : whereupon they filed a bill of exceptions, shewing the grounds on which they had asked the continuance ; namely, “that they had qualified as administrators in September 1829, and had not yet settled their accounts of administration, nor had had sufficient time to do so, and that they desired to defend themselves by shewing that there were no assets in their hands, to which the plaintiff was entitled in a due course of administration of the assets.” The court then proceeded to hear the motion, and gave judgment for the plaintiff, for the 185 dollars, with interest and costs. Powell’s administrators appealed to the circuit court of King William ; which reversed the judgment of the county court, with costs, without making any other disposition of the cause. And then Clements, in his turn, appealed to this court.

R. T. Daniel, for the appellant,

maintained, that there was no error in the proceedings of the county court, and that whether the county court erred or not, the judgment of the circuit court was clearly erroneous. Por, 1. Powell’s administrators shewed no good reason for the continuance they asked in the county court ; and that court therefore properly refused the continuance, and proceeded to give judgment for Clements. And 2, even if the county court erred in refusing the continuance, the circuit court erred yet more in giving final judgment for Powell’s administrators ; for as the only question presented to the circuit court was the propriety or impropriety of overruling the motion for the continuance *the circuit court, differing with the county court on that point, ought certainly to have sent the cause back to the county court for a new hearing of the motion on the merits.

There was no counsel for the appellees.

*

Continuances. — See monographic *note*on “Continuances'’ appended to Harman v. Howe. 27 Gratt. 676.

BROCKPNBROUGH, J.

If the circuit court was correct in holding that the county court erred in refusing to continue the cause till the next term, yet that court itself erred in rendering a final judgment for the defendants, instead of sending the cause back to the county court for another trial. There was, certainly, no other error apparent in the record of the proceedings of the county court. It simply sets forth a notice, that a judgment would he moved for against the defendants, for money which had been paid by the plaintiff as surety for their intestate ; which notice had been served on the defendants ; and they appeared to defend the motion. The evidence is not spread on the record ; nor is there any thing in it to shew that the defendants objected to the evidence adduced in support of the motion. Judgment was rendered for the plaintiff; and the appellate court was bound, under such circumstances, to presume that there was competent and sufficient evidence of the claim.

The only question, then, was whether the county court erred in refusing to continue the cause ? And I am of opinion that it did not. The only ground alleged for the continuance was, that the defendants had qualified as administrators only some seven or eight months before the motion was made ; that they had not settled their administration accounts, not having had time to do so ; and that they desired to defend themselves by *14shewing that there were no assets in their hands, to which the plaintiff was entitled in a due course of administration. I presume this motion for a continuance was founded on Chisholm v. Anthony, 1 Hen. & Munf. 27. in which *the administrator, having pleaded payment at the November term, moved the court for leave to plead the additional plea of fully administered at the succeeding March term, and to continue the cause. The county court rejected the plea; and this court said, the county court erred in not permitting the defendant to amend his plea, by pleading fully administered, according to his motion. It is to be observed, that this court did not place the reversal on the ground, that the county court erroneously refused to continue the cause, but that it precluded the defendant from making a defence to which by the law of the land he was entitled. In the case at bar, the defendants tendered no plea alleging a full administration ; or that there were outstanding debts of superiour dignity, and no assets beyond them to pay the plaintiff’s demand ; or any defence of the kind: this case, therefore, is not like Chisholm v. Anthony. The defendants here did not even suggest, much less offer to make affidavit, that there were no assets in their hands to satisfy the claim ; they merely stated, that they desired to defend themselves on that ground, without the exhibition of any plea or proof to that effect: they did not even produce their inventory and appraisement, or any list or statement of debts of superiour dignity due from their intestate, by which to render it probable, that any injury would result to them from the rendition of a judgment against them as administrators. Indeed, by the very terms of the statute, 1 Rev. Code, ch. 104, § 36, they were exempted from liability beyond the assets, even if another suit had been thereafter brought against them on their administration bond. There being then no cause shewn for a continuance, the county court acted rightly, in the exercise of a sound discretion, to refuse it.

The judgment of the circuit court should, therefore, be reversed, and that of the county court affirmed.

-BROOKE, J.

I am of the same opinion.

The recent grant of administration to the defendants was not, of itself, good reason for a continuance of the motion. Nor was the suggestion that they had not had time to ascertain the state of the assets, without pretending that the condition of the estate presented any obstacle to their ascertaining the state of them, any sufficient ground for the continuance they asked. However inclined courts of justice ought to be, to give all reasonable indulgence to executors and administrators, I do not think the county court erred in refusing the continuance in this case. But if that was an error in the proceedings of the county court, yet, surely, the circuit court erred, in not only reversing the judgment of the county court, but entering final judgment for Powell’s administrators instead of sending the cause back for a new trial of the motion.

TUCKER, P.

That the judgment of the circuit court is erroneous, is palpable ; for even if the county court erred, the judgment of reversal should have been followed by an order sending the cause back to the county court to be further proceeded in.

But the county court did not err. However indulgent to executors the courts have always been, yet, in justice to suitors, some caution should be observed in continuances which may rob the plaintiff of a just debt, and sweep away the assets, by enabling the executor in the meantime to confess judgments in after brought actions. While, therefore, it will not be denied, that an executor may be entitled to a continuance, if he can shew good cause for his inability to support his plea of fully administered, and will not be forced to trial merely because he may make defence in a future action, yet I do not think a creditor is bound to wait until the executor has had his administration account settled under an ex parte order of the court of probate, or in the regular *course of a suit in equity. If he is full handed with the materials for his defence, a court of lg.w is competent to try it; if he is not, he should shew that fact by affidavit, and give satisfactory reasons why he is not. Here nothing of the kind appeared, and the county court, therefore, properly rejected the motion for the continuance.

Judgment of the circuit court reversed with costs, and that of the county court affirmed.