Adm'rs of Wittenburgh v. Wittenburgh
| Decision Date | 31 May 1822 |
| Citation | 1 Mo. 226 |
| Parties | THE ADMINISTRATORS OF WITTENBURGH, DECEASED v. WITTENBURGH |
| Court | Missouri Supreme Court |
This was a scire facias, issued from the Circuit Court of Cape Girardeau county, against John Wittenburgh, to show cause, on the first Monday of August, 1821, at a Circuit Court there to be held, why a verdict rendered by a jury in a cause wherein the said John was plaintiff, and the said Henry was defendant, should not be confirmed, the jury having found a verdict for the then defendant, and certified, that the plaintiff was indebted to the defendant in the sum of $48.91; which said writ of scire facias was duly served on the said John, the plaintiff in the original suit, and defendant in the scire facias. At which August term, the plaintiff, Henry Wittenburgh, suggested on record, the death of the said John, which was not denied, and a scire facias was awarded against his administrators, which does not appear to have issued. At the next term, to-wit: December term, 1821, the record states, that Henry Wittenburgh, the plaintiff, came by his attorney, and the defendant, John, although solemnly called, came not, but made default; therefore, the Court rendered judgment against the defendant, for $149.27, being the amount certified by the jury (as stated in the scire facias), and costs of that suit, together, also, with the costs in the scire facias suit, to reverse which judgment, a writ of error was brought by his administrators. The death of the defendant, John, in the scire facias, having been duly suggested on record, the entry of a judgment against him, after such suggestion, is clearly erroneous;(a) therefore, the judgment of the Circuit Court, on the scire facias, is reversed, with costs.
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...allowed him to appear and plead, is therefore a nullity. This cannot be so. (2 R. C. 1855, p. 1280, § 12, 13 et seq.) V. In Wittenburgh v. Wittenburgh, 1 Mo. 226, it was ruled by this court that the death of the defendant being suggested on the record, the entry of a judgment against him a......
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