Ballard v. Kennedy

Citations

• 34 Fla. 483

Syllabus

<p>EQUITY PRACTICE — VERIFICATION OF ANSWERS — SIGNING OF ANSWERS —DISMISSAL OF BILL WHEN THERE IS A CROSS-BILL — APPELLATE PRACTICE — WHO CAN APPEAL.</p> <p>1. In Merritt vs. Daffin, 24 Fla. 320, 4 South. 806, this court, passing upon the effect that our statute, making tlie realty of a decedent assets in the hands of his executor or administrator, bad upon the question of parties to suits for tire foreclosure of mortgages made by tlie decedent in his lifetime, held that tire heir at law of such decedent was not a necessary party to a suit for tlie foreclosure of a mortgage upon the realty of the estate; ' and that notwithstanding the heir was not a party to such foreclosure proceedings, he was concluded by the foreclosure - decree and sale. We now hold that, even as the law then stood, though the heir was not a necessary party, yet he was not an improper .party to suoli foreclosure proceedings in the event the complainant saw proper to make him a party defendant.</p> <p>2, Where the heirs at law of a deceased mortgagor have been made parties defendant, along with the administrator of the decedent, to a hill for foreclosure of a mortgage upon the lands of the deceased, and have had their pleadings to such bill stricken out, and the bill is subsequently dismissed as to them, but is carried into final decree against the administrator alone, such heirs at law are so affected by such final decree, under the</p> <p>ruling in Merritt vs. Daffin, supra, as to give them the right to an appeal from such final decree though they are not named as-parties thereto.</p> <p>S. In order to entitle any one to a writ of error or apipeal to reverse a judgment or decree, he must have been a party ox privy to the record, or must be prejudiced or injured by the judgment or decree so that he is to receive benefit and advantage by the reversal thereof. Writ of error or appeal can only be taken by him who would have had the thing if the erroneous judgment had not been given.</p> <p>4. An a