List v. Pumphrey , 3 W. Va. 672 ( 1869 )

Maxwell, J.

Daniel C. List, as administrator de bonis non, with the will annexed of Beall Pumphrey, deceased, ivas allowed by the court below to file a bill of revivor. It is now objected, for the first time, that he was not such administrator in fact. As the cause was allowed to proceed in his name, as such administrator, it is too late now to make the objection.

After the cause was revived, the said ad mini stator cle bonis non, assigned the judgment, which was the subject matter of the suit, to one Henry K. List, and the suit proceeded in the name of the new administrator without the said Henry K. List being made a party, and might have so proceeded until final decree. Story’s Eq. Pl., sec. 156; 1 Story’s Eq. Jur., sec. 406; Cook vs. Mancius, 6 Johns. Ch. R., 93; Bishop of Winchester vs. Paine, 11 Ves., 194; 2 Story’s Eq. Jur., sec. 908; Murry vs. Barlow, 1 Johns. Ch. R., 577; Hoxie vs. Carr, 1 Sumner, 173.

But the defendant Z. Pumphrey charged in his answer that one George W. Pumphrey had become the owner of the judgment, and that the same had been paid off and satisfied to him, and thereby made it necessary for the said Henry EL List to file a supplementary bill. 2 Story’s Eq. Ju., sec. 908; Story’s Eq. Pl., sec. 156.

The assignee, Henry K. List, at the January term, 1868, offered to file his original bill in the nature of a supplementary bill, called by bim “Bill of revivor and supplement,” but the court refused to allow the bill to be filed, and dismissed the cause. In this I think the court erred. Story’s Eq. Pl., sec. 348; Foster vs. Deacon, 6 Maddock’s R., 59.

Eor the error in refusing to allow the said Henry K. List to file the said supplemental bill, the decree complained of will have to be reversed, with costs, and the cause remanded with leave to file the said supplemental bill, if again offered.

Judge Berkshire concurred, and President Brown concurred in reversing, but not in the opinion. ,

Decree reversed.