Stewart v. Gibson

Biggs, J. On the fifteenth day of February, 1893, the plaintiff obtained a judgment against Hugh B. Gibson in the circuit court of Montgomery county. Gibson died intestate in December, 1894. The present action is to revive the judgment. The defendants are the children and only heirs at law of Gibson. They appeared to the action and filed an answer, in which they admitted the death of Gibson; that they were his [234] children and heirs at law, and that the judgment was rendered as alleged in the petition. They averred that the action ought not to be maintained against them for the reason that their father died seized of no real estate, and that they had not received from him or his estate any kind or description of property. Upon the admissions in the answer the circuit court entered á judgment in favor of the plaintiff, to which the defendants excepted. Rla|aiDS°he?ra°to against intestate, The position assumed by the defendants is that to entitle the plaintiff to maintain the action against them, it devolved upon him to show that their father died seized of real estate or that they had received or inherited from him land which ought to be subjected to the payment of plaintiff’s judgment. In answer to this it is sufficient to say that Gibson may have made a fraudulent disposition of land which might make it important for the plaintiff to keep the lien of his judgment in force. Pagw?nst:heirs.mty Again, it is urged that the judgment of revival is in effect a new judgment for the payment of which the defendants are made personally liable. Counsel is in error as to the latter proposition. The statute provides that a judgment may be revived against the heir or devisee of a deceased defendant. It also provides in effect for the issuance of an execution against such heir or devisee, provided the execution concerns real estate received or inherited by him from the ancestor, but not if the levy of the execution concerns personalty. Sec. 6024, R. S. 1889. This shows conclusively that in'such a case the judgment of revivor imposes no personal liability on the heir or devisee. [235] parties. Dwa?vAofparties: [234] Neither is the" point well taken that the administrator of Gibson was a necessary party. Section 6024 [235] of the statute provides that the service of the scire facias may be had on “the legal representatives” of a deceased defendant. Here the term “legal representatives” has a twofold meaning. In proceedings affecting land it means the heir or devisee. As to personalty the administrator or executor is meant. Therefore if the plaintiff seeks, by the revival proceedings, to affect land only, there can be no good reason for making the executor or administrator a party. So if the obtaining of a new judgment is for the purpose of allowance only as provided by section 6024 of the statute, there would be no necessity for making the heir or devisee a party. As to this assignment it may also be suggested that the defendants, by filing an answer and going to trial, waived any objection as to a defect of parties defendant. Our conclusion is that the judgment ought to be affirmed. It is so ordered. Judge Bond concurs; Judge Bland is absent.