Court of Appeals of Kentucky.
Oct. 27, 1908.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Action by John A. Steele against John Dishman and another.
From a judgment overruling plaintiff's motion to revive his judgment against defendant Dishman's administrator and heirs, plaintiff appeals.

At the November term, 1889, of the Knox common pleas court, appellant, John A. Steele, recovered a judgment against John Dishman and one C. C. Comstock, as surety of W. H. Brafford, for $1,300, with interest from February 22, 1875, subject to credits of $700 paid February 22, 1885, $600 paid June 6, 1890, and $227 paid October 27, 1890. John Dishman died April 4, 1894, intestate, domiciled in Knox county, Ky. S. B. Dishman, one of the appellees, qualified as administrator of the decedent May 8, 1894. No steps were taken to revive the judgment against John Dishman's administrator or his heirs until March 30, 1905. The administrator made a settlement of his accounts with the Knox county court March 27, 1905, which settlement shows a distribution of all assets that came to his hands. Under these facts, the court at the August term, 1905, overruled appellant's motion to revive the judgment of 1889 against the administrator and heirs of John Dishman, and from this judgment this appeal is prosecuted.

It is agreed by the parties that John Dishman was only a surety of Brafford. "A surety shall be discharged from all liability under any judgment or decree, after the lapse of seven years without any execution issued thereon, and prosecuted in good faith for the collection thereof." The facts, as conceded, show that the judgment attempted to be revived against appellees was rendered in November, 1889, against John Dishman as surety of W. H. Brafford, and that as many as 10 years elapsed after the death of John Dishman and the qualification of his administrator without any execution being issued on the judgment, and that no attempt was made to revive the judgment against his administrator or heirs.

For these reasons, the judgment of the lower court is affirmed.


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