Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-01-14
LEGAL.
Decision Of the Supreme Court OF Ten
nessee, at Nashville, December Term,
Reported for the Union and Dispatch by S. J
IInnlnrann Lan

nessee, at Nashville, December Term,
1857.
Reported for the Union and Dispatch by S. J.
Henderson. ESQ.
To authorize the issuance Of n scirs JOciGs 10
subject the real estate in the hands Of the heir
10 the satisfaction Of a judgment against the
ancestor, q suggestion must be made upon the
record Of the fact that real estate has de
scended 10 the heir.
The issuance Of scire faeias is n Judicial act,
and itmUst be awarded by the court"
Frierson, administrator Of Embry. pc the heirs
Of J, L. Harris, deceased.
At the December term, 1866, Of this
court, J. B. Frierson recovered a judgment
against Giles I. Harris and others, for the
sum Of $500 and costs.
On the 9th Of August, 1866, the plaintiff
suggested 10 the Clerk Of this court that
the said Giles 7. Harris was dead, and that
VIM. L. Harris, G. c. Harris, Robert O..
Harris Mary Harris, Alice Harris, Clai-
borne Harris and Roseana Moore were his
heirs at law, and thereupon the Clerk issued
a sci. ia. directed 10 the Sheriff Of Maury
county, commanding him to summon said
heirs at law 20 appear before this court and
show cause, If any they have or can, why
said judgment should not be revived
against them.
This process has been served, and the
question is, can the Judgment be revived
against the heirs upon this sci. ta.s and we
are clearly Of the opinion il cannot for sew.
eral reasons.
The scire fdcids is TO show cause why the
judgment should not be revived against the
heirs Of the judgment debtor, instead of
to show cause why execution should not
be issued against the real estate of the an
cestor, descended to the heirs. We know
no authority for a single revivor of a judg-
ment against heirs.
When a suit has been instituted against
a party who dies before judgment, and no
person will administer upon the estate of
the defendant, the plaintiff may sue out a
scire fdcids against the heirs or deYisees of
re defendant, and upon return thereof,
duly executed, may prosecute his suit to
judgment and execution against the real
estate Of the deceased defendant, descended
or devised TO the heirs or devisees.
After judgment the plaintiff seeking to
subject the real estate of the judgment
debtor, descended to the heirs, before taking
out executions against such real estate,
must cause the heir 10 be summoned by
scire facids TO show cause why execution
huOuiu nOb De ltbutu dBdlilSL tue Itdi ScbdJcs
But 10 authorize the issuance of a scirs
f1cios 30 subject the real estate in the hands
of the heir to the satisfaction Of judgment
against the ancestor, a suggestion must be
made upon the record Of the fact that real
estate has descended TO the heir. This
suggestion Of record is a necessary founda-
tion Of scire fdcios against the heir, without
which the scire faeias is irregular and void,
inasmuch as a scire tacias must be based
upon some matter of record.
The clerk had no power or authority to
issue the writ. Its issuance is a judicial
act based upon a suggestion entered Of
record, and it must be awarded by the
court. Hillman Brothers rs. Hickerson
Sd Head, 375. For these several reasons
to say nothing Of others which might be
assigned, the motion to revive the judg'
ment must be refused and the scire faeial
dismissed. HAWKINS.