Robertson v. Curlee

¶1 2 dissenting. While I concur with Mr. Justice Gary in the view which he takes of the question of jurisdiction, and as to the matter of voucher, I cannot agree with him that there was any error on the part of the Circuit Judge in affirming the action of the court of probate refusing the motion of appellants to require that the said Elliott and Ketchin should be made parties defendants. I do not think that there can be any doubt that, under 'the authorities cited, the said Elliott and Ketchin were neither necessary nor proper parties to the plaintiff’s action for dower. The plaintiff did not claim, and could not claim, any relief against them. No case has been cited, and, so far as I am informed, none can be found, which holds that a warrantor of a defendant in an action for dower can or should be made a party to such an action. And it would be a burdensome and unnecessary imposition upon the doweress, involving delay and expense to which she should not be subjected, either to require her to make the warrantor a party defendant, or to permit him to demand that he should be made a party. The only object to be attained is fully accomplished by vouching, him in (as was done in this case), and hence, in any view of the matter, the order appealed from was wholly unnecessary, and hence its refusal constituted no reversible error. This, as I understand it, is conceded in the leading opinion, for it is there said: “If the motion had been refused on the ground that there was no necessity for such a proceeding, there would *461 have been no error.”. But the conclusion reached seems to have been placed upon the ground that the court .of probate rested its conclusion upon an erroneous view of the law. It seems to me that it is too well settled in this Court to require the citation of authorities to support it, that the only question for this Court is whether a ruling or judgment appealed from is correct, and not whether the reasons given for such ruling or judgment by the Court below, are sound; for if the ruling or judgment is right, it matters not whether the reasons given by the Court below for its conclusion, are sound or unsound; and in a number of cases this 'Court has affirmed judgments even though they were rested upon erroneous grounds. It is necessary to inquire, therefore: ist. What was the ruling made by the order appealed from? 2d. Whether such ruling was right? To determine the first question, it is necessary to consider what was the motion which was refused by the order in question. The “Case” shows that the defendant, Curlee, in his answer, demanded “that the said Thomas K. Elliott and Thomas H. Ketchin may be made parties to this proceeding, and required to defend the title as to the tract of 580 acres which they warranted to him in and by their said deed;” and in the “Case” it is stated that “the defendant, Curlee, and said Elliott and Ketchin, appeared before the probate court and moved the court for an order making said Elliott and Ketchin parties to the proceeding, and for leave to come in and answer the petition of the plaintiff.” So that it seems to me clear that the only ruling asked for by the motion submitted by appellants was that Elliott and Ketchin should be made parties to the proceeding, and that they be required or permitted to come in and answer the petition, and such ruling was refused by the order appealed from. 2d. This ruling was, as we have seen, clearly correct, and even if the order contained any erroneous or unfounded reasons for such ruling, that would not vitiate the order. I may add, however, that I am unable to discover that there is anything in the order either showing or tending to show that it was based upon any *462 unsound reason. There is nothing in it, so far as I can perceive, that deprived the appellants or either of them of the legal right to set up any defense to the action by showing that the title which Elliott and Ketchin had conveyed to Curlee was paramount to the plaintiff’s claim of dower, or that she had renounced her right of dower, or was in any other way barred of such right. If after the motion on the part of the appellants to make Elliott and Ketchin parties defendants, with leave to answer the petition, they had come in without answering and undertaken to set up such defenses or any of them, and the court of probate had denied them the right to do so, then the case would have been very different, and they would have had good ground to complain. But nothing of the. kind appears in the case in the record before us. Indeed, appellants seem to have proceeded upon the mistaken idea that these warrantors could not come and defend the title which they had conveyed to Curlee until they had been made parties defendants, and had answered the petition, and for that reason, probably, they made no attempt to do so.

¶2 I think, therefore, that the order of the Circuit Judge appealed from should be affirmed.