Legal Opinion

Smith v. Ballantyne

New York Court of Chancery

Decided January 23, 1843PublishedCited by 3 opinions

This was an appeal from an order and decree of the vice chancellor of the third circuit overruling the demurrer of the defendants, and directing them to pay the complainants’ judgment, with costs.

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This was an appeal from an order and decree of the vice chancellor of the third circuit overruling the demurrer of the defendants, and directing them to pay the complainants’ judgment, with costs. The bill stated that the complainants recovered a judgment in the supreme court against R. Kenyon as survivor of D. Ballantyne, and issued an execution thereon to the sheriff of the county in which Kenyon last resided, which execution was afterwards returned unsatisfied, and that the judgment remained unpaid ; that the suit in which the judgment was recovered was commenced against Kenyon and…

1Opinion of the Court

The Chancellor.

Even if the decision was right in relation to the demurrer in this case, there was nothing to justify the making of a final decree without giving the defendants an opportunity to come in and deny the allegations made against them in the bill. In that respect therefore the decree appealed from is clearly erroneous.

But I think the order overruling the demurrer was itself erroneous, as there is no distinct averment in the bill that the claim for which the complainants recovered a verdict and judgment against Kenyon, as survivor, after the death of Ballantyne, was in fact a debt…

2Cases cited1 opinion

  1. Whitney & Bancroft v. Sterling & HunterNew York Supreme Court · 1817

3Cited by3 opinions

  1. Buckingham v. LudlumNew Jersey Court of Chancery · 1883
  2. Chappell v. FunkCourt of Appeals of Maryland · 1882
  3. Handley v. JacksonOregon Supreme Court · 1897

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