224 Pa. 166 | Pa. | 1909
Opinion by
The appellant is the surety on a bond given by an administrator in 1891 to secure the accounting by him for the proceeds of the sale of the real estate of the decedent made by order of court for the payment of debts. An action was brought upon the bond by the use plaintiff while exceptions to the allowance of his claim were pending and before a final decree had been entered in the orphans’ court. On an appeal to this court it was held that the action was prematurely brought: see Com. v. Magee, 220 Pa. 201. The use plaintiff then discontinued the action without leave of court and caused a new summons to be issued. The surety obtained a rule to show cause why the discontinuance should not be struck off and the second summons quashed, which after hearing was discharged. The appeal is from the order discharging the rule.
The Act of June 14, 1836, P. L. 637, prescribes a mode of procedure in actions on bonds such as that in suit and gives to all persons who have several interests the right to join in the suit by suggestion of the right before judgment or by scire facias after judgment has been entered for the commonwealth. The remedy provided is exclusive and prohibitory of any other: Com. v. Cope, 45 Pa. 161. Since only one action is per
The appeal is dismissed.