The opinion of the court was delivered by
Redfield, J.We think, that the case came properly into this court. When judgment, in the principal action, is rendered for the defendant, and exceptions are allowed, it may properly pass to the supreme court. Whenever a case is so far ended in the county court, that, if no exceptions were taken, it would go out of court, then, if exceptions are allowed, it may with propriety pass to the supreme court instead. That was the case here. If no exceptions had been allowed, it is not to be supposed, the county court could have been called upon to try the question of the liability of the trustee. They had already rendered a judgment, which made any such inquiry fruitless, not to say absurd. The motion to dismiss is therefore overruled.
We do not think the replication affords any ground of avoiding the plea. The first suit must have failed for some defect in the proceedings, and not by the voluntary act of the plaintiff, or in consequence of any inability of the plaintiff. If poverty were to be regarded as an excuse for not prosecuting a suit, so equally would sickness, accident, or misfortune of any kind. We can only say, that the statute has not provided for any such exception, or excuse.
The judgment is therefore affirmed.