Cooper v. Hanna

2 Ind. 97

• Court: Indiana Supreme Court
• Decided: May 15, 1850
• Status: Published

Opinion

THIS is a scire facias by a judgment plaintiff against the administrators of a judgment-defendant. It charges that the administrators have been guilty of waste, whereby the assets of the deceased in their hands have been diminished, but does not aver nor show that a sufficiency does not remain to pay the plaintiff’s judgment and all other claims against said estate. It calls upon the administrators to show cause why an execution in the alternative should not issue to make the money out of the assets, if sufficient, and if not, then out of the personal property, lands, &c., of the administrators. It does not show that the judgment has been revived and execution de bonis intestaloris issued and returned no goods, &c., against the administrators. The scire facias was held bad below on demurrer. We affirm the judgment. We do not think a scire facias alleging waste can issue against an administrator till after a return of no goods of the estate of the deceased in his hands, &c., though we do not here decide the point; for if such a scire facias can issue, still that in this case is bad for not at least averring that there were not goods of the estate of the intestate in the hands of the administrators sufficient to pay the judgment in question.

The judgment is affirmed.