Mallison v. Howard
| Decision Date | 30 June 1805 |
| Citation | 5 N.C. 44 |
| Court | North Carolina Supreme Court |
| Parties | MALLISON v. HOWARD. |
Upon the suggestion of a defendant's death, his administrator ought to be made a party by a scire facias, and an order "that the administrator be made a defendant, unless he shows cause," being served upon the administrator, he appeared and showed for cause that the order was irregular and improper; whereupon the rule for making him a party was discharged.
The death of defendant being suggested, an order was made "that Sally Howard, administratrix of George Howard, deceased, be made defendant in this case, unless cause shown to the contrary at next term." A copy of this order having been served on Sally Howard, she appeared and showed cause, to wit, that the said order was irregular and not conformable to the provisions of the statute in such cases made and provided; that the representatives of the defendant, George Howard, must be made a party by a scire facias, and therefore she prayed to be dismissed. Whereupon it was submitted to this Court, "Whether the mode adopted was regular and proper." If the Court should be of opinion that the mode was irregular and improper, the rule to be discharged; otherwise, to be made absolute.
BY THE COURT. The object of a scire facias, which the act of Assembly directs to be issued in cases like the present, is to enable the executor or administrator to show cause why he should not be made a party, and no peremptory order is made that he shall be made a party until an opportunity is afforded to show cause, upon the return of the scire facias. The order made in this case was irregular and improper; the rule must therefore be discharged.
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