Wilson v. Wilson

The exceptions filed by Charlotte M. Bonnell in the probate court to the account of Louisa C. Wilson, executrix, were by that court overruled and upon appeal to the court of common pleas were in part sustained and in part overruled. To that part of the judgment sustaining the exception to the payment of $1,-649.11 to Louisa C. Wilson, error is prosecuted by her.

Charlotte M. Bonnell filed a motion in this court to strike the petition in error from the files upon the ground that no summons has been issued for her and no appearance entered, although more than four months have elapsed since the judgment was rendered.

It is claimed that her appearance was effected by the voluntary appearance of her eodefendants, Robert K. Wilson and Julia Irwin, because united in interest with her. -

Under the will of their father they were in law originally united as legatees; but this did not prevent them from after-wards severing their joint interest by one or more of them conveying their respective interests to their mother, the executrix.

There is nothing in the record directly showing any such disposition of the interest of Robert K Wilson and Julia R. Irwin, but their hostility toward their eodefendant, Charlotte M. Bonnell, is distinctly shown where they appear in the case while pending in the court of common pleas for the sole purpose *634of excepting, and do except to the decision of the court in favor of Charlotte M. Bonnell and against the executrix. In the ab-sense of any pleading showing the relation of the parties to the subject-matter of the suit this hostile act shows not only a want of unity in interest, but that Charlotte M. Bonnell will be required to defend the judgment of the common pleas court against her eodefendants as well as the plaintiff in error. They can not therefore be united in interest within the meaning of Gen. Code 11230, whereby the appearance of one effects the appearance of all. The motion to strike the petition in error from the files will be sustained in so far as it affects the defendant in error, Charlotte M. Bonnell.