Davidson v. Alvord

3 Ind. 1

Opinion

Smith, J.

This was a scire Facias to revive a judgment of the Marion Circuit Court against Allen Ale Lain and Noah Nolle. The writ states that the judgment was rendered in June, 1842; that execution remains to be done; that Noble has since died; that Alexander H. Davidson and George H. Dunn are his executors; and commands the sheriff to summon McLain to answer why the plaintiffs should not have execution against Mm; and also, to summon Davidson and Dunn to answer why execution should not issue against them, as executors, to be levied of the goods and chattels of the testator.

At the April term, 1849, the parties appeared, and the defendants filed a special demurrer to the writ of scire facias.

The first cause of demurrer was, that the writ does not state where the Court was to be holden at which the defendants were notified to appear. The defendants were summoned to appear “ before the judges of said Court on the first day of the next term thereof, to be holden on the fifth Mondby of April, instant,” &c.

The second cause of demurrer was, that the writ does not aver that the judgment remained unsatisfied.

There is nothing in these objections. The writ does aver, substantially, that the judgment remains unsatisfied.

At the October term, 1849, the death of the defendant, McLain, was suggested, and, afterwards, the demurrer, Tnled at the previous term, was overruled.

The defendants failing to answer further, the plaintiffs then obtained a judgment against the executors of Noble, to be levied de bonis testatoris.

The defendants below, now the appellants, insist that it is a fatal objection to the scire facias, that the survivor, McLain, and the representatives of the deceased joint debtor, Noble, are joined.

But if this objection was tenable at the commencement of the suit, it ceased to have any force when McLain's death was suggested, as this was equivalent to a dismissal of the suit as to him, and at any stage of the case prior to the judgment the plaintiffs might have amended the writ by striking out his name. R. S. c. 40, s. 98.

The Revised Statutes of 1843 authorize the issuing of a scire facias to revive a judgment against the personal representatives of a deceased defendant. Chapter 48, s. 89.

(1.)

J. L. Ketcham and N. B. Taylor, for the appellants. H. C. Newcomb, for the appellees.

Per Curiam.

The judgment is affirmed with costs.

) The proceeding by scire facias to revive against judgment-defendants has been abolished by the R. S. 1852; but an execution cannot be issued after the lapse of five years from the entry of judgment, except by leave of the Court, upon motion, supported by the oath of the party, or other satisfactory proof, that the judgment, or a part thereof, remains unsatisfied and due. Ten days’ personal notice must also be given to the adverse party, unless he be absent, or non-resident, or cannot be found, when notice may be given by publication as in an original action, or in such other manner as the Court shall direct. R. S. 1852, vol. 2, p. 129.

After the decease of a judgment-debtor, a proceeding in the nature of a scire facias against his heirs, devisees, or legatees, or the tenant of real property owned by him and affected by the judgment, and his personal representatives, is requisite, under the R. S. 1852, in order to authorize the issuing of an execution to enforce the judgment against the estate of such debtor in their hands respectively, and the mode of proceeding is specifically pointed out by the statute. R. S. 1852, vol. 2, p. 181.

The death of the defendant, after the execution is placed in the hands of the sheriff, does not affect subsequent proceedings thereon, except that the portion allowed absolutely to the widow by law, is exempt from levy and sale. R. S. 1852, vol. 2, p. 147.