
    Dougherty vs. Hurt’s heirs.
    X. Where judgment is rendered in the circuit court and an appeal is taken to the supreme court, the record of the whole proceedings may be referred to as existing in the supreme court; and so when the ease is returned to the circuit court, by order of the supreme court, or by abatement, the record may be described as existing in the circuit court;
    2. Where a scire facias on a judgment describes the premises, the possession of which is sued for, as in the executor and heirs, it is not to be assumed that there is a misjoinder of parties, as the will may vest an interest in the executor.
    This scirefacias to revive a judgment was tried on plea to the scire facias, replication and demurrer thereto, by Judge Harris, and judgment rendered for the plaintiffs, from which defendant, Dougherty, appealed.
    
      Pavatt, for,the plaintiff in error.-
    • The sci.fa. in this cause is defective, and ought to have been quashed by the court below.
    1. Because it claims the land for the heirs and executor both, without showing that they are entitled to it.
    2. The sci.fa. does not allege Robert Hurt had any title to the land in his life time.
    3. It does not allege that Dougherty was in possession at the time of its issuance.
    This suit cannot be maintained, because the abatement of the original cause in the supreme court is decisive and terminates the case.
    1. Because a writ of error could not abate on the death of the defendant in error by the common law. — See 2 Saunders’ Rep. p. 101.
    2. Our statutes, like the -English statutes, applies to original suits, and the alteration made by the statute to forward a cause to the supreme court by appeal in the nature of a writ of error, so far as the law of abatement is concerned, looks upon a cause in that court as an appeal, which, after the death of either party, and not revived, abates the whole suit, and the party agrieved must begin his suit anew, each one paying his own cost.
    
      The plea of nul tiel record is a good plea to the sci. fa., and the replication that there is such a record in the circuit court, is a departure, and consequently demurable. — 1 Saund. R. 117 (a.) n. 3. What is pleaded and not denied is admitted.— 1 Saund. R. (22 a.) n. 3.
    
      A. W. O. Totten, for defendants in error.
   Reese, J.

delivered the opinion of the court.

Robert Hurt, in his life, brought his action, which was so prosecuted, against John Dougherty, the plaintiff in error, in the county of Carroll, that in the circuit court of that county he obtained a judgment for restitution of the possession of the premises in controversy. From -this judgment Dough-erty prosecuted his appeal in error to this court; and after such appeal, Robert Hurt departed this life, and his death was duly suggested in this court; and the case remaining two terms in said court, without any step taken by the plaintiff in error to revive the suit, either against his heirs or personal representatives — a judgment was entered in this court, that the writ of error of plaintiff should be abated. Subsequently, a scire facias was sued out in the circuit court of Carroll county, in the name of the devisees and executor of Robert Hurt, alleging their interest in and title to. the possession and property of the premises mentioned in the judgment of restitution, heretofore rendered in that court, in favor of Robert Hurt against John Dougherty, describing the proceedings and judgment in said court, and stating the appeal in error and its abatement in this court. The defendant pleaded that there was no such record as that set forth in the scire facias; the plaintiffs replied that there was such a record, as appeared by the records of said circuit court. The defendant demurred, and the plaintiff having joined therein, the circuit court held the plea to be good, and overruled the demurrer and awarded execution, and the defendant has prosecuted his appeal in this court. Two questions have been discussed: first, that the replication is á departure from the scire facias which recited a judgment for restitution in the circuit court, and, also, a judgment abating the writ of error in the supreme court, and the replication to the plea of nul tiel record refers alone to the record existing in the circuit court; and that for this departure in pleading, the demurrer to the replication ought to have been sustained. We are of opinion that there was no such departure. Where a record comes up from an inferior to a superior court, it would be doubted by none that the record of such inferior court becomes, and may be declared to he, the record of such superior court. And in like manner where action has again to take place in the inferior, in consequence of what has been done in the superior court, either in obedience to the mandate of such superior court, or by operation of law upon the rights of the parties, the action of such superior court, from which such mandate, or such rights arise, in relation to and in connexion with former proceedings in the same cause in said inferior court, became when sent down, as in strictness and regularity it ought to be sent down, a record of such inferior court and may be described and referred to as existing there. If this, however, were not so, it would follow— in a case like the present, and in order that just legal remedies might not fail, but be effectual — that the reference to the proceedings of the superior court in the scire facias would be regarded as surplusage only.

The other objection to the judgment below is, that the executor is a plaintiff In the scire facias with the heirs, and it is alleged that this is a misjoinder; it is unnecessary for us to state how this would be, as the question presents itself; for the scire facias avers that the right to the possession and premises recovered, and of which restitution is prayed, is in the plaintiffs in the scire facias. The will is not before us, so as to show that the executor is not interested in the possession, as well as the devisees, for the restoration of which, process and execution is sought to be awarded.

Upon the whole case, then, we are of opinion that there is no error in the judgment of the circuit court, and we affirm the same, and award the process prayed for in the scire facias.  