Scharmann v. Schoell

O’Brien, J.

(concurring):

One of the essential facts upon which the action must he predicated is the inability to serve the administrator or administratrix.

„ If it should be held that the administratrix here was' a necessary party, then this action could not be maintained. For it would presuppose that she could be brought within the jurisdiction of the court by some kind of service, and if she could, then an accounting could be compelled, and a direct action against the bondsmen in the first instance would not lie.. To repeat, therefore, it is because she cannot be brought within the jurisdiction and compelled to account, that this action is permissible ; and it would defeat such an action tó hold that she was a necessary party. I, therefore, concur in the conclusion reached by Mr, Justice Ingraham.

Judgment reversed, and judgment ordered overruling demurrer, with leave to defendant to answer on payment of costs in this court and in the court below.