7 Blackf. 334 | Ind. | 1845
— This was a scire facias by M’-Culhch against Brackenridge and Mariam to show cause why a judgment should not be vacated. • The writ (which was issued in January, 1843,) alleged that M’-Culhch, at the April term, 1838, of the Allen Circuit Court, commenced an action of debt against Dewitt C. Stephens, William A. -Henderson, and Mason M. Mariam, as partners, trading under the firm of D. G. Stephens and Co., on a promissory note made by that firm; that the process was returned “not found” as to Stephens; that M'-Culhch obtained a judgment against Henderson and Mariam; that, after the rendition of the judgment, Henderson died, and Brackenridge was appointed his administrator; that Mariam was not in fact a member of the firm of D. C. Stephens and Co., and was made a party to the suit by mistake; that one Zenas Henderson was a dormant partner of that firm, and as such was one of the makers of the note, but that he had fraudulently induced M’-Culhch to believe he was not a partner, and was, therefore, not sued; whereupon the judgment ought to be vacated, &c. The defendants demurred to the scire facias, and the demurrer was overruled. Whereupon the Court adjudged that the judgment in the action of debt be vacated.
We think the demurrer should have been sustained. We know of no principle of law by which a plaintiff can, by scire facias, set aside a judgment, regular upon its face, obtained by him at a term prior to that of issuing the scire facias, though he may have committed a mistake in obtaining the judgment.
— The judgment is reversed with costs. Cause remanded, &c.
