Downard v. Sluder

5 Blackf. 559, 1841 Ind. LEXIS 42

• Court: Indiana Supreme Court
• Decided: May 31, 1841
• Status: Published

Opinion

Dewey, J.

This was a scire facias for execution in the Circuit Court on the judgment of a justice of the peace. The scire facias, after stating that the plaintiffs, James Downard, and William H. Downard, filed in the clerk’s office a transcript of a judgment of a justice of the peace in their favour against the defendant Sluder, which had been entered in the order book, set out the transcript in hcec verba. The transcript thus set out shows a judgment in favour of “ James and William H. Downard” against Sluder, and that an execution, which was issued upon it, had been returned “ no property-found.” The defendant demurred to the scire facias. The demurrer was sustained, and 'final judgment rendered for the defendant.

This judgment is erroneous. The allegation in the scire facias that the justice’s judgment was in favour of the plaintiffs, is equivalent to an averment that they recovered it in the names of James and William H. Doionard. A judgment in this form is not a nullity. It might, indeed, have been avoided by objecting the want of. proper parties to the action in due time; but it was too late to urge that objection against the scire facias. Jones et al. v. Martin, May term, 1840. The writ, also, by copying the transcript containing those facts, virtually alleges that an execution had issued upon the and that it had been returned “no property found.” This is all the statute requires. -

C. C. Nave, for the plaintiffs.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.