Murray's Administrator v. Baker

Chief Justice Ewing delivered the opinion of the Court. At the November term, 1823, of the, Trigg Circuit Court, Baker recovered a judgment against Reynolds and Murray for $256 16 cents, with interest and costs. Reynolds and Murray both died, and a scire facias was sued but against the Administrator of Murray only, to revive the judgment and have execution. Upon this and another scire facias sued out to the county of Trigg, where the judgment was recovered, the Sheriff returned “not found;” whereupon judgment was rendered for the debt, interest, and costs, against the administrator of Munay, in personam, and that the plaintiff have execution, and the administrator has brought the case to this Court. The judgment Is erroneous in two particulars, on its face: First, In the entry of anew judgment for the amount. It should have been that the plaintiff have execution only for the judgment mentioned in the scire facías. vSecond, It was erroneous to render judgment against the administrator, in personam, it should have been against him to be levied of the assets in his hands to be administered.' But there.is a more radical defect .In the proceedings. According to the principles and within the reason, of the rules now settled by this Court, i't was erroneous- to sue out a scirefacias against the administrator of Murray alone. A joint scire facias should have been sued out against both the administrator of Murray and the administrator of Reynolds, and' if the latter had no administrator, and twelve months bad expired from his death, without the appointment of one, it should have been sued out against his heirs, in conjunction with the administrator of Murray, or his administrator and heirs, under the statute of 1819; (1 Slat. Law, 780.) As it has been sued out against the administrator of Murray only, the, judgment is reversed [173] and cause remanded, .that the.scir.e facias may be dismissed without prejudice to a joint proceeding as indicated. Cales Lindsey for plaintiff: Fry & Page for defendant.