Wilson v. Kirkland

1 Miss. 155

• Court: Mississippi Supreme Court
• Decided: June 15, 1824
• Status: Published

Opinion

OPINION OF THE COURT — By the

Hon. POWHATTAN ELLIS.

At the May Term of the Circuit court of Adams county, 1822, a judgment was rendered against the defendant upon which plaintiff sued out a ca sa, returnable to the succeeding November term. Kirkland delivered property in discharge of his person, and afterwards entered into a forthcoming bond, wkh Martin L. Thomas, his security. The forthcoming bond was returned forfeited, to November, 1823, and a fifa sued out against the effects of Kirkland, who had died in August, previous to the emanation of the execution. The counsel for Kirkland moved to quash the execution, upon the ground that it hadimprovidently issued, before the suit had been revived in the name of the legal representatives of Kirkland. This motion was overruled, and the case comes up by bill of exceptions.

The execution should have been quashed upon motion, upon the rule of decision laid down in two cases decided in this court. Levi Kendricks, administrator, vs. William Snodgrass, and Nanchnies, administrator, vs. Rabb. In the last case,, it was distinctly laid down, that an execntiN1 could not go out against the effects of a deceased person’s estate, until his representatives were brought into court. Judgment of. th.e court below-reversed, and motion to quash the execution allowed.