Comm'rs of Sink. Fund (Fall v.) 127 Harris v. Newman

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CASES

ARGUED AND DETERMINED

IN THE

HIGH COURT OF ERRORS AND APPEALS

FOR THE

STATE OF MISSISSIPPI.

JANUARY TERM, 1844.

WILLIAM B. DAVIS, Adm'r. &c. et al. v. WILLIAM M. HELM.

An execution bearing teste after the death of the defendant, will be quashed on motion.

If the defendant die after judgment, and before the issuance of an execution, the judgment must be revived by scire facias, before an execution can issue. If an execution be issued, and returned without a levy, and the defendant die before the issuance of a second, a revival of the judgment is necessary before another execution can be issued.

When a judgment is rendered against several defendants, and one dies before an execution is issued, the execution must issue against all, but can be levied only on the property of the survivors.

ERROR from the Circuit Court of Wilkinson county.

The material facts in this case are concisely stated in the opinion of the Court, and are fully set out in the argument of Mr. Gordon.

Farish and Simrall, for plaintiff in error.

We maintain that an execution cannot be sued out after the death of a defendant, and satisfied out of his goods in the hands of his legal representative, without scire facias to revive the judgment.

Scire facias is necessary in two classes of cases. 1st. Where an execution is not issued within a year and a day; 2d. Where the defendant has died before the writ was issued. In the first case,

Davis, et al. v. Helm.

the law presumes the debt has been paid or discharged; in the second, a new party, a stranger to the record, to wit, the executor or administrator, is to be affected by the judgment.

Previous to the statute of Westm. 2d, 13 Edw. 1st, if the plaintiff in a personal action laid by for a year and a day after judgment, he was compelled to bring debt upon his judgment, and no scire facias was issuable. But that statute gave the remedy as in real actions. 2 Tidd, 1102. Scire facias is expressly given by our statute, Rev. Code.

The Common Law theory is, that an execution is ordered by the Court in term time to be issued, though in fact no such order is ever made. And therefore, in England, if a defendant be living at the time this order is presumed to be made, then he is a party to it. But if he die before the teste of the fi. fa., then it went out against a party not in esse, and is irregular. (2 Tidd, 1000, top paging.) The death of either party to the record stops the proceedings, if before judgment; then the proper parties must be brought in. If either party, plaintiff or defendant, die before the teste of the fi. fa., a scire facias must issue, to warn in the proper party. 1 Salk. 322. (Authorities before cited.)

The rule upon this subject is well defined by this Court, in Smith & another v. Winston & Lawrence, 2 How. 604. "When a new person is to be benefitted or charged by the execution of a judgment, a scire facias is necessary to make him a party.” The rule, in nearly the same language, is laid down in 2 Saunders, Rep. 72, (1).

When a plaintiff dies within a year and a day after judgment, his personal representative cannot have execution against the defendant, without scire facias. 2 Saund. 6, note (1). This is an instance, where a new party is to be benefitted by the judgment. In the same note, it is said, if the defendant dies, then the scire facias must be against his heir terre tenants, or administrator, as the case may be. This is an instance of a new party to be charged by the judgment. The prayer of the scire facias is quare executio fieri, non debet. It is considered in the nature of a new action, and the administrator may reply a release of all actions, a discharge, &c. (Ibid.)

Davis, et al. v. Helm.

Wilson v. Kirkland, Walker, Rep. 155; Hicks's Administrator v. Moore ib. 66; Hubert v. Williams, ib. 174, expressly maintain the position we have taken. From these adjudications we do not think it longer an open question in this State. This Court has never given an intimation of a disposition to unsettle these adjudications; but clearly, on the contrary, recognize the principle in the case referred to in Howard. The practice of the Courts for the last twenty years has been conformed to them.

The death of the defendant, at Common Law, absolutely abated the suit. To obviate the inconvenience of commencing a new suit against his administrator, the fiction of relationship was adopted; so that upon a warrant of attorney to confess judgment, judgment could be entered up in vacation, and be made to relate back to the first day of the preceding term, although in the mean time the defendant may have died; so as thereby, in contemplation of law, it would be rendered against the defendant in his lifetime. By the same sort of relationship, an execution could be tested as of the first day of the last term, though the defendant be dead; and this fictitious relationship gave it the legal effect of being, in fact, sued out in the defendant's lifetime. 3 Ld. Raym. 858, Oades v. Woodard; 1 Salk. 87; 1 Ray, 244. In 7 Durn. & East, 16, top paging, the whole doctrine of testing and relating back of executions and judgments is examined by Lord Kenyon. See also 1 Saunders, 219 f, Wheatly v. Lane; in this case it is distinctly stated, that the only case, in which an execution can be levied of the goods of the intestate in the hands of his administrator, is where the date of the judgment and teste of the execution can be fixed in the lifetime of the intestate.

It will be seen, by reference to these cases, that the goods of the intestate have been seized in the hands of the administrator by an execution actually tested in the intestate's lifetime; and the reason given by Tidd, before cited, is, that all the parties to the writ, at the date of its teste, were living; in other words, there was authority for issuing it, and the defendant was bound to obey its precept.

We have been unable, from an elaborate research in the English books, to find one case of an alias f. fa. tested after the death of