
    Miller v. Shearer.
    
      Saturday, December 16.
    
    
      Scire facias, in the Circuit Court, to obtain an execution against real estate, upon the transcript of a judgment of a justice of the peace. Demurrer to the scire facias sustained, and judgment on the demurrer. Afterwards, in vacation, the plaintiff amended and re-filed his scire facias, and, at the following term, the Court awarded execution for want of an answer. No notice was given to the defendant, nor did he appear after the scire facias was amended. Held, that the awarding of the execution was error.
    ERROR to the Hmtingion Circuit Court.
   Perkins, J.

Scire facias, in the Circuit Court, to obtain execution upon the transcript of a judgment of a justice of the peace. Demurrer to the scire facias, because it did not contain the averment that the defendant had lands in the county. Demurrer sustained, and final judgment for the defendant, that he go hence, &c., and recover his costs, &c.

J. R. Coffroth, for the plaintiff.

D. M. Cox, for the defendant.

Afterwards, in vacation, the plaintiff amended and refiled his scire facias; and, at the next succeeding term, the Court awarded execution against the defendant named in it, for want of an answer. There was no notice to, nor appearance by, the defendant after the amending and refiling of the scire facias.

On the final judgment for the defendant on the demurrer, he was out of Court, and no further proceeding could be had against him except upon a new notice, or his reappearance. Neither of these things appearing to have occurred, the judgment against the defendant must be reversed.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.  