Stewart v. Montgomery
Supreme Court of Pennsylvania
Error, to tbe Common Pleas of Oentre county. H. Montgomery brought an action on the case to August Term, 1849, against D. A. Stewart, as executor of the will of William Stewart, deceased, to recover for medical services rendered to the testator. The pleas were non assumpsit and non assumpsit infra sex annos. On 11th September, 1850, verdict for plaintiff for $142.50. A fi. fa. to November Term, 1850, was returned “ nulla bona.”
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Error, to tbe Common Pleas of Oentre county. H. Montgomery brought an action on the case to August Term, 1849, against D. A. Stewart, as executor of the will of William Stewart, deceased, to recover for medical services rendered to the testator. The pleas were non assumpsit and non assumpsit infra sex annos. On 11th September, 1850, verdict for plaintiff for $142.50. A fi. fa. to November Term, 1850, was returned “ nulla bona.” On 11th September, 1851, a scire facias was issued against the said William Stewart, as executor, with notice to him as devisee of the real estate left by the said…
1Opinion of the Court
The opinion of the Court was delivered by
Knox, J.
It is clearly and definitely settled, that, where a judgment is obtained against an executor, upon a scire facias subsequently issued to charge the realty in the hands of an heir or devisee, the judgment against the personal representative does not preclude a defence upon original grounds.
The Act of 1834 requires the widow, heirs, and devisees to be made parties to suits brought against the personal representatives where the intention is to charge the real estate with the payment of the debt sought to be recovered. As parties they may avail…
2Cited by3 opinions
- First National Bank and Tr. Co. v. LaubachSupreme Court of Pennsylvania · 1939
- Jones' CaseSupreme Court of Pennsylvania · 1941
- Commonwealth v. Cochran, Pennsylvania Court of Common Pleas, Butler County1892