Irby v. Brown

Warner, Chief Justice. This was a motion to amend a judgment. On the 5th of February, 1867, Lyne sued Tho,s. S. Irby in his individual capacity, and as the administrator of Abraham Irby, on a promissory note for $1,655.53, and obtained judgment thereon on the 29th of August, 1867, which judgment was entered up against the defendant in his individual capacity only. An execution issued upon that judgment against the defendant in his individual capacity, and as administrator. There were several entries made on the fi. fa. by the clerk and sheriff, and some credits entered thereon. In July, 1S73, Lyne transferred the fi. fa. and judgment to Downing, and on the 23d of January, 1875, Downing transferred the same to Brown. The defendants offered in evidence an administrator’s bond signed by Thos. S. Irby, as principal, and Jas. W. Asbury and Thos. A. Lyne as securities. The motion to amend the judgment was made in February, 1877. The motion to amend was resisted, principally on the ground of the lapse of time, but the court ordered the 598 judgment to be amended and entered up against the defendant, Thos. S. Irby, in his individual capacity, and Thos. S. Irby as administrator of Abraham Irby, to be levied of the goods and chattels, etc., of said Thos. S. Irby, and the goods and chattels, etc., of the said intestate in the hands of said-administrator to be administered, if to be found, “ and if not to be found, then of the individual property of said Thos. S. Irby.” Whereupon the defendants excepted. We find no error in allowing the judgment to be amended so as to make it conform to the pleadings in the record, but the latter part of the judgment, to-wit: l£.and if not to be found, then of the individual property of said Thos. S. Irby,” was not authorized by the pleadings in the record. The pleadings in the record do not show that the defendant pleaded tie wnques administrator, or a release to himself, or jdlene adtnvnistra/vit, or plene admi/nistravit praeter, and that his plea was found against him. See Code, §3573. We affirm the judgment of the court below, with directions to strike out of the amended judgment so much thereof as is not authorized by the pleadings in the record. Judgment affirmed, with directions.