Greathouse v. Morrison

• Decision Date: 21 February 1911
• Citation: 70 S.E. 710,68 W.Va. 714
• Parties: GREATHOUSE v. MORRISON et al.
• Court: West Virginia Supreme Court

70 S.E. 710

68 W.Va. 714

GREATHOUSE v. MORRISON et al.

Supreme Court of Appeals of West Virginia.

February 21, 1911

Submitted March 29, 1910.

Syllabus by the Court.

One or more of a number of joint judgment debtors having died, the judgment may be revived by a writ of scire facias against the surviving judgment debtor or debtors.

At common law a judgment could not be revived or enforced against the personal representative of one of two or more joint judgment debtors; but section 13 of chapter 99 of the Code of 1906 authorizes a separate scire facias against him.

Though a writ of scire facias to revive a judgment against surviving judgment debtors commands service thereof on such personal representative, and service thereof is made upon him, the latter is not really a party to the writ, if it warns him that execution will be asked against the survivors only.

Error to Circuit Court, Braxton County.

Action by Ira H. Greathouse, guardian of W. O Morrison and another, against R. T. Morrison, executor by G H. Morrison, and others. From the judgment, plaintiff brings error. Reversed and remanded.

James E. Cutlip, for plaintiff in error.

Linn Byrne & Hines, for defendants in error.

POFFENBARGER J.

This is a writ of error to a judgment, quashing a writ of scire facias to revive a judgment, issued by the clerk of the circuit court of Braxton county, at the instance of I. H Greathouse, guardian for W. O. Morrison and Stella M. Morrison.

The judgment was rendered in favor of Greathouse, guardian as aforesaid, and against G. H. Morrison, W. F. Morrison, and W. P. Newlon. One of these, G. H. Morrison, having died, R. F. Morrison had been appointed executor of his will and qualified. Service of the writ upon the two surviving debtors and the executor was commanded, and it was served on them, but the monition thereof was that judgment would be sought against the survivors and the testator, one of the deceased debtors, not against the personal representative. The action of the court stands upon the assumption of a defect as to parties, nonjoinder or misjoinder of the executor.

The first question is the construction of the writ to determine whether he was really joined. As no execution, the real object of the writ, was asked as to him, we think he was not although it was directed to be served upon him, and was so served. This seems to have been done for the purpose of enabling him to appear and defend, but not for the purpose of taking execution against him, upon the assumption of an...