Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-02-22

Ppu,riej Cor ttr T-rion and Dispatch by Linds-
ley Reid.
Aadrac Grcgorg, ct a., rs. Thomas Clodtceii,
Eroc1aor Of z. H. CAii8ress, deceased
I scrpE FAcTAs-If plaintiff die after iuig
ment. but before execution Issues, II is necessary
sued before his death. OF if il be tested before
bisdeath and issued afterwards the same may /
be levied, and the property sold, as u the death /
had not occurred.
. SAMr-A scire f1eius. although a judicial /
writ and always founded on judgment or other /
judicial proceeding, is considered in law an ac- /
:. SAuE.-Section 27s7 Of the Code, although |
in terms applicable 10 cases Of reYIyOr against i
defendants, is, when coupled with section 1857, /
iu spirit and meaning alike applicable % a re- |
Etyur IN case Of the death Of the plaintiff.
In 1860, T. II. Childress obtained a |
Judgment before a Justice Of the peace Of |
Davidson county, against J. II. Charlton, |
b. VI. Wheeler, Andrew Gregory and |
Others, for five hundred dollars and costs Of |
snit. Sometime thereafter Childress died, |
and the defendant in error Caldwell, |
qualified rs his executor. In 1868, he APP
peared before the justice and suggested the |
death of Childress and moved for seire |
fraidy against all the defendants TO appear |
and show cause why the judgment should |
not be revived in his name. The ScUe |
tfcj0s was issued, which was returned, exc
cuted upon Andrew Gregory, and b. NJ. |
Wheeler On the day fixed in the officers |
return for the reviyOr, the Justice, in the |
absence Of all the defendants, heard the |
cause on the scire taciGs, and revived the |
Judgment in the name Of the executor as |
plaintiff, aginst Gregory and Wheeler, the |
parties served with notice and directed |
an alias 81. IA. TO issue a. 20 the other de |
PENDANTS and an execution As to Gregory
and Wheeler against whom the Judgment |
stood revived
Gregory and Wheeler brought this pro- |
ceedingup by catiordri, 10 the Circuit Court,
when, after a motion to dismiss the petition,
the action Of the ustice was affirmed and
judgment rendered against the plaintiffs in
error and their security on the prosecution
bond for the debt and costs; from which an
appeal in error was prosecuted to this
Court.
On this state Of facts, the only question
presented here is, whether or not IL was err
rur 10 revive the judgment a 10 part Of |
the defendants without reviying a. 10 the |
whole
At common law, plaintiff must issue
his execution within year and day after
the date Of the Judgment; otherwise the |
court will presume the Judgment satisfied. |
IL be failed TO issue his execution within
the time limited, he was compelled, in order
90 obtain it, 10 bring the defendant into !
Court by scire tocia8, when he was at liberty
to show cause why the judgment should not
be- revived, and execution issued against
him. g Blackstone Com 42l, Meigs' Di- |
pest. page SOL
Bat by our Statute, Code, sec 1881, |
this practice is abolished; and ii is not ne |
cessary now, after the lapse Of year and a |
dav, 10 resort 10 a acis iucids TO revive a |
Judgment and obtain an execution thereon. |
Judgments under our statute, as at common |
law, are not presumed satisfied within a |
year and a day; but the plaintiff may have |
his execution, at any time, perhaps within |
ten years after the rendition of the judg-
ment. Code 2776.
But if the plaintiff die, pending the suit |
aud before judgment, the action may be re- |
yiyed by motion at any time before the /
cause is tried, or abated. Code, sec. 2Sjl |
IT. however, the plaintiff die after judgment /
and before execution, it seems TO be aeces-
sary 10 revive by srirc flcius. But if exc
cution has issued beiOrethe DEATH il may be
levied and the property sold NJ if the death
had not occurred; or if it be tested before
the death, and though issued afterwards,
T. % /
Megs' Digest, page SOB
But the question still recurs, may the
reyivor be As 10 one OF more defendants
and not as 10 ALL
scirc Gucias is judicial writ, founded
upon matter Of record, as a Judgment, re-
cognzance, etc, on which il lies 10 obtain
execution, or for some other purpose THE
State Bank rs. Vance, 9 Yer. 472; Tidd's |
Pr, 9S2. But although it be a judicial
writ, because it may be pied TO by the de-
PENDANT, il is considered, in law, an action.
Id. Also, Coke Lit. 300 b., 29l a. 2 Tenn. |
r. 4G.l
Although a acire Eicius for certain pur-
poses IL treated az an action, it Is neverthe- |
less always founded upon some Judgment,
reCognizance, bond, or other judicial pro-
oeeding, which il must recite, or at least so |
much thereof "a will show the liability Of |
the defendant. 3 Haywood, 173; 4 Yer,
1856; 5 Yer, 1854 BY our practice,
prior TO the Code il seems 10 have |
been settled that scirc fdcias founded |
upon n Judgment rendered against two, |
could not be taken against one Of the
two. Chafin as. Wilson, Humphreys,
23l-32. But the COde-whether for good |
or Cor evil is not for us to determine
seems 10 have worked a change in our prac-
tice on the subject Of revivor and Joint and |
several actions. BY section 27S7, il is de-
clared that persons Jointly or severally, or
jointly and severally bound, on the same
instrument, or by judgment, decree or
statute, including makers and endorsers ON
negotiable paper and sureties, may all or
any part Of them be sued in the same
action" And again, by section 29SS, it is
declared, of there are more defendants
than one, and any one of them die leaving
the co-deiendant orco-deiendants surviving,
the plaintiff may proceed by execution,
against the survivor, or revive by scirs ia
Gas against any portion, or all Of the per !
sonal representatives of the deceased, 10 be
issued 10 any county in the State.
This latter section of the statute although | :
in terms applicable TO cases of revivor
against defendants, iscertainly, when coupled
with the former, in spirit and meaning
alike applicable 60 revivor in case of the
death Of plaintiff, In both cases the reyivor {
against one, when the iudgmentupon which
the sclre taoIa7 issues ia against two or more,
exhibits q variance between the rectals in
the process and the Judgment revived.
And the same reason that ought 10 be urged
against such a proceeding ia the one case,
AZ equally applicable in the other. The
defendant as 70 whom Joint Judgment or y
"A Judgment against two or more Is not re- "
yiyed, void be as likely 10 have a. law 7
iul defence against the Judgment if
brought in by sras tdrius as hc would in
similar case on an application to revive ON
the death of the plaintiff In the name of y
his personal representative. The reason is
precisely the same in both eases. and We I
would be doing violence to the intention of
the Legislature, and the meaning of the
statute, 90 Construe it otherwise
Applying this construction of the statute '
10 the case under consideration il necessa- !
rly follows that the judgment of the Cir y
cut Court must be affirmed u
MIILIoAN, Judge