MCCLANE
v.
BOON
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A writ of error was improperly issued in a case where the defendant had died, as the citation was served on parties not named in the original record. The Supreme Court held that proper procedure required first applying to the lower court to revive the suit in the names of the deceased defendant's widow and heirs before issuing the writ of error, and dismissed the writ for this procedural defect.
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Mr. Justice NELSON delivered the opinion of the court. ¥e think the counsel for the plaintiff in error has mistaken the proper practice under the peculiar circumstances of the case. Application should have been made to the court below for the purpose of reviving the suit in the name of the widow and heirs of the deceased; and then a writ of error could have regularly issued. If the court should refuse, then it would become necessary to issue it in the name of these representatives,, in the usual way, serving on them the citation to appear at the next term. The case of Kellogg et al. v. Forsyth, * is an authority for issuing the writ in the name of the widow and heirs, and, also, for the appearance of these parties on the citation, and make objections to these proceedings if they see fit. As the case now stands, the parties to the suit described in the writ, and in whose name's it was issued, are McClane, plaintiff in error, and Boon, defendant, deceased, and the citation is issued and served on parties, not parties to the record, which, of itself, is error.† Writ oe error dismissed. * 24 Howard, 186. † Davenport v. Fletcher, 16 Id. 142.
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Davis v. Preston, 280 U.S. 406 (U.S. 1930)…eview of it by this Court. All right and discretion to do either had passed to his successor in office. Florida ex [*408] rel. Wailes v. Croom, 226 U. S. 309; Taylor v. Savage, 1 How. 282, 286; Dolan v. Jennings, 139 U. S. 385, 387; McClane v. Boon, 6 Wall. 244. It follows that the writ of certiorari granted on the petition of Davis was improvidently allowed and must be dismissed. The fact that the surety company joined in the petition can not alter the result. While the company was adjudged liable for th…