Graves v. Skeels ex rel. Patrick

6 Ind. 107 | Ind. | 1855

Perkins, J.

Scire facias to revive a judgment. The writ of scire facias was as follows:

“ State of Indiana, county of Vigo, ss. The state of Indiana to the sheriff of Clay county, greeting: Whereas Jeduthun Skeels, for the use of Joseph Patrick, on the ninth day of November, in the year 1840, in the Circuit Court within and for the said county of Vigo, recovered a judgment against John Graves in a certain action of debt, to-wit, his debt of 3Ó8 dollars, and 36 dollars and 70 cents damages, and 3 dollars and 64 cents costs, making in all 348 dollars and 34 cents, as to us appears of record; and whereas, afterwards, and before execution thereupon had, to-wit, on the-day of May, 1842, the said John Graves died intestate, after whose death letters of administration were granted in due form of law to Elias Bowlin; and whereas the said John left, as his heirs and terre-tenants, Samuel Graves, James Douglass and Nancy Douglass, formerly Nancy Graves, James Graves, Rebecca Graves, Mar-gar el Graves, Noah Graves, John W. Graves, Sarah E. Graves, Jesse Graves, and Ma/ry J. Williams, formerly Ma/ry J. Graves, and John Williams, her husband; and whereas the said judgment remains unsatisfied, as we are informed by the said Joseph Patrick, we therefore command you that you make known to the said Elias, Bowlin, as such administrator, and the said Samuel Graves, [naming also all the other heirs,] and the terre-tenants, if there be any, that’they appear before the judges of said Circuit Court in and for said county of Vigo, on the first day of their next term, to show cause, if any they have, why the said Jeduthun Skeels, for the use of Joseph Patrick, ought not to have execution of the goods and chattels of the said John Graves, in the hands of the said Elias Bowlin yet to be administered, and of the lands and tenements of which the said heirs are seized, as the heirs of the said John Graves, deceased, for his debt and damages and costs aforesaid, and further to do,” &c.

The writ was returned by the sheriff served on Elias Bowlin, and several of the defendants, and not found as to others, and an alias scire facias was issued to Putnam county, where service was obtained upon the remainder.

After continuances, at a regular term of the Court, the adult defendants were defaulted, a guardian ad litem was appointed, and appeared and answered for the infants, the cause was heard, and, says the record, “the evidence herein being submitted to the Court, and the Court being fully advised, it is considered by the Court that said judgment in said scire facias be revived,” &c. The residue of the judgment is not, as it should have been, that execution be first levied of the goods, &c., of the administrator, and, for any deficiency, &c., of the lands of the heirs.

It is objected that the proceeding against the administrator and heirs jointly is erroneous; that the judgment against the heirs is erroneous; that the scire facias does not charge that the heirs inherited lands, and is otherwise defective.

The proceeding jointly against the administrator and heirs to obtain revivor and execution, is correct. Bryer v. Chase, 8 Blackf. 508.—Welborn v. Jolly, 4 id. 279.— 2 R. S., p. 181, s. 642. But the judgment should be, as we have intimated, to make the money first of the assets in the hands of the administrator, and, failing of this, then, &c. But an informality of this kind will not occasion the reversal of the judgment. Section 580, 2 R. S., p. 162, enacts that “no judgment shall be stayed or reversed, in whole or in part, by the Supreme Court, for any defect in form,” &c., “but such defects shall be deemed to be amended in the Supreme Court,” &c. And see Saxton v. The State, 8 Blackf. 200.—Alden v. Barbour, 3 Ind. 414.

J. P. Usher, for the appellants.

We think the scire facias sufficient on error, it not having been demurred to below. We presume the proof supplied defective allegations.

Per Curiam.

The judgment, as amended in this Court pursuant to the statute, is affirmed with costs.