State Ex Rel . Rascoe v. . Hyman, Shields

Admitting that the defendant, S. B. Hym an, cannot be held responsible in his character as surviving admin-trator of A. M. Riddick for the reason that no assets of the intestate came to' his hands; and further, that he cannot be held responsible in his character of executor of his co-administrator, John H. Hyman, for the reason that no assets of the intestate were in the hands of J. H. Hyman at the time of his death, he having wasted the same, yet there is no reason why he should not be held responsible as an obligor on the administration bond for the devastavit committed by J. H. Hyman just as any other obligor on that bond would be responsible. The breach of the bond complained of in this action, is the devastavit committed by J. H. Hyman. Why are not all the obligors on the bond responsible for the breach ? The plaintiff is not precluded from suing S. B. Hyman on the bond, by the fact that in a former suit against him as surviving administrator of Riddick, he had taken a judgment guando. This j udgment admits that no assets of Riddick had come to the hands of S. B. Hyman at that time, but it does not admit that none had come to the hands of John H. Hyman, and therefore in the first action a judgment guando was the only one that could have been properly rendered. The demurrer should have been overt uled.

Judgment reversed, and case remanded to be proceeded in according to law.

Pee CüRiam. Judgment reversed*