McClane v. Boon

73 U.S. 244, 18 L. Ed. 835, 6 Wall. 244, 1867 U.S. LEXIS 962

• Court: Supreme Court of the United States
• Decided: March 18, 1868
• Status: Published

Opinion

Mr. Justice NELSON

delivered the opinion of the court.

¥e think the counsel for the plaintiff in error has mistaken the proper practice under the peculiar circumstances of the case. Application should have been made to the court below for the purpose of reviving the suit in the name of the widow and heirs of the deceased; and then a writ of error could have regularly issued.

If the court should refuse, then it would become neces sary to issue it in the name of these representatives,, in the usual way, serving on them the citation to appear at the next term.

The case of Kellogg et al. v. Forsyth, * is an authority for issuing the writ in the name of the widow and heirs, and, also, for the appearance of these parties on the citation, and make objections to these proceedings if they see fit.

As the case now stands, the parties to the suit described in the writ, and in whose name's it was issued, are McClane, plaintiff in error, and Boon, defendant, deceased, and the citation is issued and served on parties, not parties to the record, which, of itself, is error. †

Writ oe error dismissed.

* 24 Howard, 186.

† Davenport v. Fletcher, 16 Id. 142.