
    Malony, et. al. v. Bourne.
    Ifc is error to order execution on scire facias against, a person wlio is not made a party to the proceeding.
    Error to Clinton District Court.
    
   Opinion by

Kinney, J.

Bourne recovered judgment iit the district court, against David Sleator and Aimes, his surety on appeal. Before the judgment was satisfied Sleator died intestate, and letters ol' administration were granted to Lawrence Malony. A scire facias was issued against the administrator, to show cause why Bourne should not have execution of the goods and chattels of Sleator in the hands of Malony, yet to be administered. The scire facias was demurred to, and the demurrer overruled by the court, and judgment rendered against Malony, the administrator of Sleator, with the proviso that no execution should issue against Sleator's estate, “but that the plaintiff should have execution against the survivor Aimes. ~Wo see no error in this judgment against the administrator of which he could take advantage. The proceeding against him by S'4ire facias was authorized by the statute, and judgment was properly rendered against him as the administrator of Sleator. But we think the court ought not to have awarded execution against Aimes. lie was not before the court. He was not joined in the writ, and the court had no jurisdiction over him in the proceedings then before them. True, Aimes was surety in the appeal for Sleator, and Bourne liad a right to proceed against, his property on the judgment which he had recovered, but this fact did not justify the court in awarding execution when he was not a party to the proceedings then pending.

The judgment, therefore, against Malony, administrator, is affirmed, and the award of execution against Aimes reversed.

W. E. Leffinqwell, for plaintiff in error.

P. Smith, for defendant.  