Copes v. Fultz , 9 Miss. 623 ( 1844 )

Mr. Justice Clayton

delivered the opinion of the court.

In April, 1839, Levi Sholar, as the surviving partner of Scurlock & Sholar, obtained a judgment against Copes for two hundred and thirty-two dollars, in the Holmes circuit court. No execution issued upon the judgment within the year and the day, and in September, 1841, a scire facias to revive was issued. No farther steps were taken in this cause till April, 1843, when without any suggestion of the death of Sholar, the defendant in error, H. H. Fultz, as the administrator de bonis non of the deceased partner, Scurlock, caused himself to be admitted as a part}'- plaintiff upon the record, took a default upon the scire facias, issued in 1841, and obtained an order for an execution in his own name.

The bare statement of the facts proves as plainly as any argument could do, that all the proceedings subsequent to the issuing of the scire facias, are erroneous. The judgment could only be enforced in the name of Sholar, or if he rvere dead, in that of his representative. The administrator of Scurlock was a mere intruder, without legal right or authority, so far as appears from the record, to justify his interference.

Judgment reversed.