
    Pickering and Others v. Walcott.
    
      Saturday, December 23.
    A bill of revivor was filed against an administrator and minor heirs, whose names were unknown to the complainant. Held, that the statute of 1838, under which the bill was filed, required at least the name of one of the heirs to be stated.
    In proceedings in chancery, on a bill of revivor, an order that the suit be revived is necessary before final decree.
    ERROR to the Allen Circuit Court.
   Blackford, J. —

This was a bill in chancery, filed in 1832, by Walcott against Patterson and Pickering, to foreclose a mortgage.

The defendants, in 1833, answered separately.

In February, 1842, the complainant filed a bill of reviv- or, which states, inter alia, that Pickering was dead, and that the suit, as to him, was abated. It also states, that F. P. Randall had been appointed administrator of the estate, and that the deceased had left two minor children, whose names were unknown to the complainant. It concludes, in substance, as follows: To the end, therefore, that said suit may stand revived, that the said legal representative may answer this bill, that a guardian ad litem, may be appointed for the minors, and that said representative may abide such decree in the premises as to the Court shall seem meet; may a writ of subpoena be granted against said administrator, &c.

To this bill, the administrator filed an answer.

He was afterwards appointed “ guardian ad litem for the said minor defendants,” and filed an answer for them.

The cause was submitted to the Court, and a decree rendered, that the defendants pay, in ten days, to the complainant, the sum of, &c., or, in default thereof, that the land be sold, &c.

These proceedings are erroneous.

The bill does not give the name of either of the heirs. The statute of 1838, under which the bill was filed, required at least the name of one of the heirs to be stated. R. S. 1838, p. 443.

IT. Cooper, for the plaintiffs.

D. H. Colerick and J. G. Walpole, for the defendant.

There was no order that the suit should be revived. Such an order was necessary before a final decree.

Per Curiam.-

The decree is reversed, and the proceedings subsequent to the bill of revivor set aside, with costs. Cause remanded, &c.  