Shoup v. Conwell

2 Ind. 497

• Court: Indiana Supreme Court
• Decided: May 27, 1851
• Status: Published

Opinion

Blackford, J.

On the 19tb of January, 1849, one James Conwell took out a writ of foreign attachment against the property of the defendant, Samuel Showp. The cause of action set out in the affidavit and attachment was a promissory note dated in 1845, waiving all benefit of the appraisement laws. The attachment was returned levied on certain property, real and personal, which is particularly described in the return'.

On the 23d of January, 1849, the said personal property was released upon the defendant’s executing a bond agreeably to the statute.

At the February term, 1849, of the Circuit Court, there was an order of publication.

At the August term, 1849, Francis A. Conwell, administrator of the estate of said James Conwell, appeared and suggested the death, since the last continuance, of the said James Conwell. And it was thereupon ordered that the cause be revived in the name of said Francis A. Conwell, administrator as aforesaid.

Afterwards, at the said term of August, 1849, publication was duly proved.

At the February term, 1850, the plaintiff and defendant appeared by their respective attorneys, and the defendant failing and refusing to make any defence, the cause was submitted to the Court. Judgment was after-wards rendered for the plaintiff for the sum found to- be due on the note sued on, with an award of execution against the defendant’s property.

That is the whole case as shown by the transcript.

The defendant contends that the suit having abated by the death of James Conwell, the original plaintiff, it ought not to have been revived without a scire facias.

If the defendant had not noticed the suit after the order of revivor, or if, on the first opportunity, he had moved to set aside that order and his motion had been overruled, he might now have raised the question as to the necessity of a scire facias in the case. But supposing that a scire facias, as the defendant contends, ought to have issued, still as the defendant, after the order of revivor, appeared to the suit, and suffered a judgment to be rendered against him, without objecting to the order, he may be considered as having waived the objection.

It is true, there is, in the transcript, before the entry of the defendant’s appearance, a statement of the clerk that the defendant moved to dismiss the causé for the want of a scire facias, and that the motion was overruled. That statement, however, is no part of the record, the motion and decision on it not having been made a part of the record by a bill of exceptions. '

/. D. Howland, for the appellant. G. Holland, for the appellee.

The judgment is correctly rendered for the plaintiff for the sum found to be due on the note; and, as the defendant appeared to the suit, we see no objection to the award of execution against his property generally.

Per Curiam.

The j udgment is affirmed with 1 per cent. damages and costs.