
    Hezekiah J. Howe, George H. Richards and John DeArmond v. Mary Jane Lemon and Henry Lemon.
    Discontinuance— Writ of assistance — Entitling,
    A discontinuance as to a deceased party is needless.
    Matter set up in defense to a motion for a writ of assistance cannot be received to affect the decree determining the defendants’ rights.
    Where proceedings by writ of assistance were taken on the foot of a foreclosure decree against a wife, leave being given to discontinue as against the husband, the objection that the papers were wrongly entitled in the names of both defendants was held a mere technicality. especially where it was not clear from the record whether the order of discontinuance had been entered.
    Appeal from Berrien.
    Submitted January 12.
    Decided January 25.
    Foreclosure. Defendant appeals from order allowing writ of assistance.
    Affirmed.
    
      O. W. Goolidge and E. M. Plimpton for complainants.
    
      Ed/wa/rd Bacon for defendant appellant.
    An affidavit-for a writ of assistance is void if entitled in the name of the defendants in the original suit after one of them has died : Whipple v. Williams 1 Mich. 115; Arnold v. Nye 11 Mich. 456.
   Campbell, J.

This is an appeal from an order allowing a writ of assistance against Mary Jane Lemon. A decree was made in the circuit court for the county of Berrien for the enforcement against her of a contract adjudged to have •the effect of a mortgage, and for a sale on default. This-decree was affirmed by this court in all respects excej>t as to personal liability for any deficiency. Howe v. Lemon 37 Mich. 164. It'was there intimated that she was the only party interested, and that there was no need of making Henry Lemon a party, and leave was granted to discontinue against him. It may be gathered that he has been dead for some time, so that in fact no discontinuance was necessary j and we cannot tell from the record whether this has been formally entered or not.

A sale was made and upon a confirmation of the report,, and demand of possession with the proper evidences of right, Mrs. Lemon refused to give it up, and a writ of assistance was asked for and granted. The objection that the papers-are no longer properly entitled in the name of both defendants is a mere technicality. It serves sufficiently to identify the case; and it is at least questionable under the record which she has brought here and presented for our consideration, whether the case has any other title as yet. The appeal papers are all entitled in the same substantial way,, and we do not think the objection deserves attention.

The objection that the filing and confirmation of the report does not appear is contradicted by the record.

The matter set up in defence to the motion cannot be received to affect the decree which determined her rights and obligations.

The order must be affirmed with costs.

The other Justices concurred.  