Blair v. Parker

29 Ky. 630, 6 J.J. Marsh. 630, 1831 Ky. LEXIS 286

• Court: Court of Appeals of Kentucky
• Decided: October 28, 1831
• Status: Published

Opinion

Chief Justice Robertson

delivered the opinion of the court.

^ie year *^29 Parker sued out a scire facias against James Blair and John Smith, to have execution on a replevin bond, given by Blair, Sm>th, anc¡ Throckmorton, in 1804, and obtained a judgment for execution, which this writ of error is prosecuted to reverse. . ...

. I he only question which we shall notice is, whether the proper parties were made defendáis? . . , . ...

As a scire Jacias should contorm to the judgment» Throckmorton’s representatives were necessary par-{¡eSi They were not made parties, and therefore the judgment cannot be sustained, as the demurrer to plea (5) involved the validity of the scire facias: (Calloway’s heirs et al. vs. Eubank and son, IV. J. J. Marshall 280.)

It may not be improper to suggest that, as an execution had been issued on the replevin bond .in due time, there is no necessity for a revivor against the survivors. If it be necessary to revive al all, it is for the purpose of having execution against Throckmor-ton’s executor or administrator.

Judgment reversed and cause remanded, with instructions to overrule the demurrer which the circuit court sustained to the 5th plea.'

Bledsoe and Depew, for plaintiffs; Denny and Tal-hot, for defendant.