Opinion
(January Term, 1874.)
A suit that has abated by the death of the principal in a Sheriff's bond, cannot be revived against the sureties, when the original summons was never served on the sureties.
CIVIL ACTION, tried before his Honor, Moore, J., at the July (Special) Term, 1873, of MECKLENBURG Superior Court. (282)
Wilson Son and Brown for appellant.
H. W. Guion and Vance Dowd, contra.
The defendants, sureties on the official bond of a deceased sheriff, file affidavits denying that the summons in this case was ever served on them. His Honor found the allegations to be so, and dismissed the proceedings, when the plaintiffs appealed.
The facts of this case are stated in the opinion of the Court.
The writ issued against Lawrence and his sureties upon his official bond as sheriff, and service was acknowledged by Lawrence; but there was no service upon the defendants who were his sureties. Lawrence died, and after the suit had abated as to him and discontinued as to the defendants, a summons was issued to the defendants to make them parties in that suit which had been, but which was then out of existence.
We considered whether we could not treat the summons to the defendants as an original summons, and treat the complaint as a new complaint against them, or else allow a complaint to be filed and the action go on. But the objection is, that it would subject them to costs, which have accumulated in a case in which they were not parties, and besides it might deprive them of some advantages which they would have in a new suit.
PER CURIAM. Judgment affirmed.