The herald., 1896-11-22
A THIRD TRIAL.
Twice Carried to the Supreme Court
and Again Remanded.


A ruling of the supreme court in the
case Of Joseph Horton. administrator
plaintiff and appellant, VS.. r. E. Jack,
defendant and respondent, was received
yesterday.
This is the second appeal in the case,
carried up from the superior court OF
this county. On the first appeal the
cause was remanded for a new trlaI as
between the plaintiff and the detenuant,
Jack. The second trial resulted IN
verdict and Judgment for defendant and
plaintiff appealed from the judgment
and from an order denying his motion
for new trial.
1t was conterNled by appellant that
the facts disclosed on the second trlal
were substantially the same as on the
first trial, and that the decision on the
former appeal is therefore the law OF
the case and required a reversal of the
judgment. Respondent. on the other
hand, claimed that the evidence was
substantially different, in that IL SHOWS
that the debt to pay which the property
in controversy was sold, was the dept
of the deceased, and not that OF Cath-
crime j. Brown; that the eXecutrlX hau
the right to pay that debt from the FUNDS
of the estate, although it was not for
merly prescribed against the estate, and
although such payment was not ap-
proved by the probate court; ana that
the taking of the property to pay that
debt did not amount to conversion,
The supreme court holds that the
facts as to the debt in question, as proved
on the second trial, did not differ from
those disclosed on the first trial. No
sale of any property of the estate of
deceased person passes any title. unless
it is confirmed by the probate court, and
that as it is clear neither the sale nor the
supposed payment was so sanctioned
the title to the property remained in the
estate, and under the decision on the
former appeal, the administrator was
entitled to treat the property as con-
verted by Jack and to recover its value
from him.
1t was also decided upon the former
appeal that until distribution the admin
strator is absolutely entitled to the
possession of all personal property of
the estate; that any interference with
that property, by any person, which has
the effect of depriving the admiristra
tor of the possession is a conversion,
and that he is entitled to recover there
for without proving an Indebtedness to
satisfy which the property is necessary.
The respondent objects to the consid-
tration of the bill of exceptions on the
ground that it was served more than ten
days after the service of the notice of
on the ground that lit was not served
until sixteen days after the amend
ments had been proposed. and then
without any notice and over object
ton" The former objection was not
taken in any way in the trial court,
though defendants proposed amend
ments, and, therefore, the supreme
court confined its attention IA the latter
AS the statute only requires the judge
to designate the time at which he will
settle the BILL and the clerk to imme-
diately notify the parties of such desig-
nation. 1t would seem. says the court,
that the judge. while holding court and
both parties being present. might desig-
nate that very time for the settlement
of the bill Such a designation must
be held to be sufficient. No objection
having been taken at the time. it must
be presumed that the defendant had
an ample opportunity to be heard upon
the settlement. We think. therefore.
that the objections are not well taken.
and that appellant is entitled to fave
the bill of exceptions considered upon
this appeal.
The judgment and order are reversed
and the cause remanded for new trial