Fowler v. Wheeler

Beck, P. J. Upon the trial of the case of Fowler and others against C. 0. Wheeler and R. W. Cochran as executors of the will of a named testator, the superior court sustained a general demurrer filed by the defendants, and to this judgment the plaintiffs excepted and sued out a writ of error to this court. No party defendant in the original suit was designated as defendant in error, the bill of exceptions merely reciting that the suit was brought against Wheeler and Cochran and Mrs. Elias Cochran, though in fact Mrs. Elias Cochran was neither named as a defendant nor served in the original suit. The motion to dismiss the writ of error must be sustained. The amendment proposing to add the word “executors” after the names of Wheeler and Cochran can not cure the defect in the bill of exceptions as it was sued out. Writ of error dismissed. All the Justices concur.