¶1delivered the opinion of the Court.
¶2This suit was commenced in the Circuit Court of Polk county, on a note executed by John Duff, now dead, with defendant Ely Boyd, his security, to Titzer, and by Titzer transferred by delivery, to Robert W. McClary.
¶3McClary having instituted this suit, died; and under the provisions of the Code, sec. 2849, the suit was revived in the name of his heirs at law — no person being willing to administer. This proceeding was correct: 3 Head, 568.
¶4The record, however, shows that a scire facias was ordered at the same time the order of revivor was made. This was unnecessary, but cannot have the effect to vitiate the order of revivor.
¶5*570The administrator and administratrix of Duff, made no defense, but Boyd, the security, filed his plea, alleging his discharge by reason of notice to the holder of the note to sue, and failure to do so within the required time; and issue was taken on this plea, and this was all the issue in the pleadings.
¶6It appears that the administrator and administratrix of Duff, having made no defense, the cause proceeded as though they had done so, and a verdict was rendered against them with Boyd, and a joint judgment rendered on the verdict.
¶7This proceeding was irregular: 4 Sneed, 588. But however erroneous it be as to the administrator and administratrix of Duff, we cannot see that there is error in it, of which Boyd, the security, can complain. It does not operate to his prejudice that the administrator and administratrix of Duff, were erroneously joined with him in the verdict and judgment.
¶8The administrator and administratrix have not appealed, and the judgment must be affirmed as to Boyd, unless it is erroneous on some other ground.
¶9He insists that he is discharged in consequence of his notice to McClary to sue, and his failure to do so in proper time. This defense would be available if it appeared that McClary held the note when he was notified — of which fact there is no evidence: Code, 1968; 4 Sneed, 75. The notice was served in May, 1863, and this suit was not commenced till September, 1865.
¶10Let the judgment be affirmed as to the security, Boyd.