Ricker v. Gerrish

In an action against two defendants sued on a joint and several recognizance entered into under the Gen. Sts. c. 124, § 10, one of them died, pending the action, and a discontinuance was entered as to the other on account of his discharge in bankruptcy. On motion of the plaintiff, an order issued to summon in the administrator of the deceased defendant, returnable at April term 1877. On April 23, 1877, an entry of “No default till further notice ” was made. On May 4 1877, the administrator appeared specially and filed a motion to dismiss, which was granted by the judge. Held, that the motion was seasonably made and rightly granted.

Contract against George W. Gerrish and John Q. A. Hanson on two joint and several recognizances entered into under the Gen. Sts. c. 124, § 10, on September 5, 1874, by the first named defendant as principal, and the other defendant as surety, and each containing the usual conditions. Writ dated October 6, 1874, and returnable at January term 1875 of the Superior Court. On February 18, 1876, Hanson filed an answer, setting up his discharge in bankruptcy. On April 24, 1876, Gerrish died, and his death was suggested on May. 4, 1876. On October 12, 1876, a discontinuance was entered as to Hanson, on account of his discharge in bankruptcy. On January 23, 1877, on motion of the plaintiff, an order issued to summon in the administratrix of the estate of Gerrish, returnable at April term 1877. On April 23, 1877, the following entry was made on the docket by order of the judge: “Ho default till further notice.” On May 4, 1877, the administratrix appeared specially, and filed a motion to dismiss. On these facts, Dewey, J., ruled that the action could not be prosecuted against the administratrix, and dismissed the samé. The plaintiff alleged exceptions.