The petition for the rule against the sheriff alleged that the petitioners were witnesses in the case of Edmond Huff against Anderson as administrator of McNeil; that an execution was issued in that case in favor of the plaintiff against the defendant, April 2, 1896, for $220 principal, and $119.40 costs, including the fees due petitioners as such witnesses ; that the sheriff had made the money on the execution, and had in his hands a sufficiency of the same to pay petitioners’ fees. The untraversed answer of the sheriff, which was dismissed by the court below on general demurrer, was to the effect that the only fi. fa. in favor of Edmond Huff against Anderson as administrator of McNeil, ever placed in his hands, was issued October 8, 1897, and was for $813 principal, with interest from May 20, 1896, and $71.60 costs, “that there was no entry of witness fees whatever on said fi. fa., or in .the bill of costs entered thereon,” and that this fi. fa. had *472been fully satisfied. Taking, as we must, this untraversed answer to be true, the petitioners bad nothing upon which a rule absolute in their favor could be based. The sheriff had never had any such fi. fa. as was described in the petition, and no witness fees were included in the only fi. fa. he had ever had in fávor of Edmond Huff against Anderson as administrator of McNeil, and this fi. fa. moreover had been fully satisfied. It is true that the answer of the sheriff admitted that he had in his hands a fi. fa. in favor of Elizabeth Huff against Anderson as administrator of Harrison McNeil, with entry of witness fees thereon; yet the petitioners did not claim fees as witnesses in that case and on that fi. fa., nor could the witness fees included in that fi. fa. be collected by making a rule absolute which was founded on an entirely different fi. fa. As it appeared from the answer of the sheriff, as well as that of Anderson as administrator, that no fees were due petitioners as witnesses in the Edmond Huff case, and that none were included in the fi. fa. issued therein and upon which the rule was based, it follows that Anderson as administrator, he being the defendant in execution, was entitled to the balance of the fund raised on such fi. fa-., after paying the principal and interest due the' plaintiff and the cost due the officers of court. The answer of Anderson as administrator also set forth facts in denial of any claim which petitioners might have had for witness fees under the Elizabeth Huff fi. fa., which the sheriff had in his hands. We think the court erred in refusing to allow Anderson as administrator to be made a party defendant to the rule, and in dismissing the sheriff’s answer and making the rule absolute against him.
Judgment’ reversed.-
All the Justices concurring, except Simmons, O. J., who was disqualified.