
    Solomon T. Harrell, administrator, etc., plaintiff in error. vs. Andrew Park, defendant in error.
    1. P. sued B., H. andP. on a joint and several promissory note. Pending the suit H. died,, and his death was suggested of record, and an order taken that the plaintiff proceed against the survivors, which he did, and took judgment against them. Afterwards the plaintiff sued out a scire facias to make the administrator of H. a party to the case, which the Court allowed, and gave judgment against him: Held, that this was error.
    Action on a note, in Meriwether Superior Court, and decision therein by Judge Bull, at August Term, 1860.
    This was an action brought by Andrew Park to recover the amount of a promissory note, dated 24th December, 1856, due the 25th December, 1857, payable to the plaintiff, or bearer, and signed by Elijah Beauchamp and Solomon Harrell, as principals, and Jesse Partridge, as security, for $1,500, with interest from the date of the Dote.
    Pending the action Solomon Harrell died, and at August Term, 1858, his death was suggested of record, and an order taken “ that the plaintiff proceed against the surviving coobligors in their several capacities, and that the judgment shall not terminate the case against the said Solomon Harrell, but that plaintiff (or said Jesse Partridge in the event he. shall pay said debt) be allowed to proceed and make the legal representatives of said Solomon Harrell, a party principal in terms of the law, and proceed in terms of the law.” At the same term a verdict and judgment were taken against Elijah Beauchamp, principal, and Jesse Partridge, security for Beauchamp, and Solomon Harrell for the principal and interest due on the note, with costs of suit. On the 4th of January, 1860, a scire facias was sued out against Solomon T. Harrell, administrator of Solomon Harrell, deceased, for the purpose of making him a party to the suit.
    The administrator resisted the proposal to make him a party, on the ground that the plaintiff having elected to proceed against Beauchamp and Partridge, the surviving co-obligors in the note, and having taken a judgment against them, that suit was at an end, and the administrator could not then be made a party to the case according to law.
    The presiding Judge ruled that the administrator could be made a party, and passed an order to that effect, and a verdict and judgment were rendered against him accordingly. That judgment is the error complained of in the bill of exceptions.
    George A. Hall, for plaintiff in error.
    B. H. Hill and Adams & Knight, contra.
    
   By the Court.

Jenkins, J.,

delivering the opinion.

Upon the death of Solomon Harrell, one of the defendants, pending the action the plaintiff below had his election, either to make his representative a party defendant, and proceed against him with the survivors, or having suggested the death of Harrell of record, to proceed against the survivors alone.

He elected the latter course and proceeded against them to judgment. How he asks to revive the same case against the administrator of Harrell. Ho authority directly in point has been adduced, but our opinion is, that this is inadmissible. The final judgment of the Court having been rendered against a portion of the defendants, we hold that the record is so far closed that it can not be re-opened to make the representative of a defendant, who died pending the action, a party. Ho joint judgment could be now rendered against all the co-obligors.

Any judgment obtained against the administrator of Harrell must be several; then why should not that be in a several suit ?

Let'the judgment be reversed.  