Smith v. Smith

8 Blackf. 59, 1846 Ind. LEXIS 31

• Court: Indiana Supreme Court
• Decided: May 29, 1846
• Status: Published

Opinion

Perkins, 'J.

Scire facias before a justice of the peace by Nancy Smith, administratrix of the estate of .John Smith, deceased, against Isaac W. Smith as replevin-bail. Judgment before the justice for the plaintiff, and appeal by the .defendant to the Circuit Court. The cause was there dismissed on the ‘defendant’s .motion, because the scire facias did not show that the judgment against the principal had been revived in the name of the administratrix, the plaintiff in the scire facias.

G. B. Joiner, for the plaintiff. H. S. Lane and S. C. Willson, for the defendant.

Whether it should have shown such revivor is the only question submitted.

A suit against replevin-bail is an original action. It could be instituted under the law governing this case, so soon as the liability of the bail for the debt of the principal became absolute. That happened on the return of “ no property found” to an execution against the goods of the principal. But although a suit could not be sustained against the bail till after such issue and return of execution, it has been held by this Court not necessary that the scire facias in the case should show those acts to have been done. Brison v. Street, 5 Blackf. 359. There could have been no necessity for reviving the original judgment by the plaintiff in this case, except to procure their performance; and as it is unnecessary that that should be averred in the scire facias, a fortiori, it cannot be necessary that a revivor shbuld be. Should it appear . upon the trial that there had been a return, in the lifetime of the judgment plaintiff, of “no property found” to an execution, that fact would render it unnecessary for the 'present plaintiff to prove a revivor of the judgment in order to sus-' tain her action.

Per Curiam.

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