General
BEAUCHAMP H. SMITH, Defendant and Plaintiff in Error, v. WILLIAM H. STILWELL, Plaintiff and Defendant in Error
9 Ariz. 22780 Pac. 333·Arizona Supreme Court·1905·AZ
KENT, C. J., and DOAN, J., concur.
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Opinion
[Civil No. 865.
Filed March 30, 1905.]
[80 Pac. 333.]
BEAUCHAMP H. SMITH, Defendant and Plaintiff in Error, v. WILLIAM H. STILWELL, Plaintiff and Defendant in Error.
1. Appeal and Error — Abatement and Revival — Personal Action— Appeal Must Be by Personal Representatives. — While in real actions an heir at law who may show that he is injured by an erroneous judgment against his ancestor may prosecute a writ of error, in case of the death of the ancestor, to reverse such judgment, in a personal action a writ of error can in such event only be brought by the personal representatives of the deceased.
ERROR to the District Court of the First Judicial District in and for the County of Pima. George R. Davis, Judge.
Dismissed.
The facts are stated in the opinion.
J. F. Conroy, for Plaintiff in Error.
William H. Stilwell, in pro. persona.
[MAJORITY — SLOAN, J.]
SLOAN, J.
In the district court of Pima County, the defendant in error, William H. Stilwell, obtained a personal judgment against one S. Morgan Smith. The plaintiff in error is seeking to review this judgment on a writ of error sued out “as heir at law of S. Morgan Smith, defendant in the above-entitled cause, on behalf of himself and of the other heirs at law.” The defendant in error has moved to dismiss the writ upon the ground, among others, that petitioner in error has not shown himself, in the petition, in such privity with the judgment as to entitle him to prosecute the writ. While in real actions an heir at law who may show that he is injured by an erroneous judgment against his ancestor may prosecute a writ of error, in case of the death of the ancestor, to reverse such judgment in a personal action a writ of error can, in such event, only be brought by the personal representatives of the deceased. Greene v. Watkins, 6 Wheat 260, 5 L. Ed. 256; Overseers of Poor v. Beedle, 1 Barb. 11.
Por the reason that the petition in error does not show facts entitling the petitioner to prosecute the writ, the motion to dismiss will he granted, and it is so ordered.
KENT, C. J., and DOAN, J., concur.