2 Ind. 183 | Ind. | 1850
This was a bill in chancery, filed by the plaintiff in error, in July, 1845, as the assignee of a judgment rendered, by the Wayne Circuit Court, against one Stewart. The object of the bill (the judgment-debtor being dead) was to subject a certain town lot, left by the deceased, to the payment of the judgment. The insolvency of the estate is alleged. The defendants are the administrator and heirs of the judgment-debtor.
The administrator demurred to the bill, but the demurrer was overruled.
The heirs answered by their guardian ad litem. The answer alleges, among other things, that the complainant had assigned the judgment to one Petty. The complainant replied, stating, among other things, that, in February, 1§46, he directed, in writing, the clerk of the Wayne Cir
The Court dismissed the bill, on the ground that Petty should have been a party complainant.
The defendants’ counsel insists that the order was an assignment, in equity, of the judgment to Petty; but we are not of that opinion. The order, instead of being an assignment of the judgment, was not to operate until the judgment had been extinguished by the payment of it. What would be the effect of such an order, when drawn on the judgment-debtor, is a question which need not now be examined.
The defendants’ counsel also contends that the administrator ought not to have been a party, and that his demurrer should have been sustained. But the judgment accords with the case of Bryer et al. v. Chase, 8 Blackf. 508.
The decree is reversed, and the proceedings subsequent to the replication set aside, with costs. Cause remanded for further proceedings. Costs here.