Opinion
04-17-1802
Williams, Executor of Young, v. Strickler
Call, for the appellant. Wickham, contra.
In this case, suit was brought against Williams, as executor of Young, upon a promise made by the said Young in his life-time, and a verdict being rendered for the plaintiff, in the County Court, judgment was entered for him against the defendant, de bonis testatoris, (as appeared by a copy of the judgment, obtained by the appellee's counsel, from the County Court, since the cause was brought into the Court of Appeals; ) but the Clerk, in making out the record sent up to the District Court, stated the judgment to have been rendered against the defendant, de bonis propriis. The District Court, without correcting the mistake, affirmed the judgment, upon the erroneous record; and, from the judgment of affirmance, Williams appealed to this Court.
Call, for the appellant.
The judgment of the District Court is clearly erroneous, as the suit was against the defendant, as executor, and the judgment of the District Court subjects him de bonis propriis.
Wickham, contra.
Admitted the judgment of the District Court to be erroneous; but, prayed some process, either to the District or County Court, to correct the mistake.
Cur. adv. vult.
OPINION
PER CUR.
The Court is of opinion, that the judgment of the District Court is erroneous, in affirming that of the County Court, against the appellant, as executor of the said Edwin Young, without directing the damages and costs to be levied of the goods and chattels of the said Edwin Young, in the hands of the appellant, to be administered, if so much thereof he had; but, if not, then of his own goods and chattels, according to law; therefore, it is considered, that the said judgment of the District Court be reversed and annulled: And, on the motion of the appellee, who suggested that the transcript of the record of the proceedings in the County Court, transmitted to the District Court, in this cause, is not correct; and it appearing, by a separate copy of the judgment in the County Court, certified by the Clerk thereof, that there is a material variance between that, and the judgment aforesaid, the cause is remitted to the District Court, for that Court to obtain by certiorari, or otherwise, a true and correct transcript of the judgment of the said County Court, and for further proceedings to be had therein.