Opinion
05-28-1824
Drago v. Stead and Others
Leigh, for the appellant. Tucker, for the appellees.
This was a writ of right brought in the County Court of Monongalia, by Stead's heirs against Drago. The County Court gave judgment for Stead's heirs, and Drago appealed to the Superior Court of Law for the same county. The judgment was reversed, and the cause retained for trial, by consent, in the Superior Court. In that Court, it was suggested that Susanna Fryback, one of the demandants, had died since the institution of the suit; but, the Court decided, that the writ should be abated as to Susanna, and proceeded to try the cause, and rendered judgment for the remaining demandants. Drago appealed to this Court.
Judgments reversed.
Leigh, for the appellant.
Tucker, for the appellees.
OPINION
The President, delivered the opinion of the Court.
It is not material whether, in this case, Susanna Fryback died leaving a child, or not, as was at first supposed. It sufficiently appears that she was dead before the trial, and rendition of the judgment of the County Court; and as the law then was, upon the authority of the cases cited in 2 Saund. 72, and by this Court, in the case of Carter v. Carr, 1 Gilmer 145, by her death, the writ abated as to all the demandants, and should have been so abated by the County Court. The judgment of the Superior Court is also erroneous, in not rendering such judgment as the County Court ought to have rendered in this particular. Both judgments are reversed, and judgment is to be entered that the whole writ abate.