Alexander v. Sutlive

• Decision Date: 31 July 1847
• Docket Number: No. 5.,5.
• Citation: 3 Ga. 27
• Parties: Moses H. Alexander, administrator of Moses Alexander, deceased, plaintiff in error. vs. John W. Sutlive, executor of Majors Henderson, deceased.
• Court: Georgia Supreme Court

3 Ga. 27

Moses H. Alexander, administrator of Moses Alexander, deceased, plaintiff in error. vs. John W. Sutlive, executor of Majors Henderson, deceased.

No. 5.

Supreme Court of the State of Georgia

JULY TERM, 1847.

Effect of a demurrer at law. Plea of nul tiel record to sire facias to make parties, after a demurrer sustained at a former term of the Court below, and that judgment upon a writ of error reversed.

Error from Randolph Superior Court. April term, 1847. Before Judge Warren.

For the facts see the opinion delivered by the Supreme Court.

Jones, Benning & Jones, and Hines Holt, for the plaintiff in error, made the following points:

1. A sci. fa. is so fax an action that it may be pleaded to. 1 Kelly, 292, 366, 367. 2. Entries upon the docket of the Judge are not evidence, 1 Kelly 366, 367, and therefore there is no evidence of the death of any party in the case.

And the absence of any action in the case, for four years, is an evidence that the case is out of Court.

Devon, McDougald, Taylor and Thomas for the defendant in error.

There is no error in the judgment of the Court below in obeying and carrying into effect the order, decision and judgment of this Court in making parties.

The same causes or ground, in substance, after being adjudicated in this Court, and judgment had upon the same, cannot be alleged for error, they being res judicatae.

After a judgment on the merits of the case being had in the Court below, and afterwards adjudged in this Court, a party cannot plead matter in abatement, where judgment is final.

After a party defendant pleads to the merits of case in Court below, and a final judgment had below and in this Court, a party cannot plead nul tiel record to the record upon which the cause was adjudged in this Court.

After a party defendant pleads to a cause in abatement or bar, and a final judgment being had on the same, he cannot then plead any other matter in abatement or bar.

Authorities to be referred to: —Act of 1845, creating Supreme Court, 5 sec; Prince 422, 442; 1 Kelly R. 367; 10 John. R. 200; Bla. Com. 24.; Arch. Civ. P1. 352; 2 Tidd Prae. 1116, 1127; 1 Bailey R. 20; Comyn Dig. tit. Abatement H. 34; Petersdorff Abr. tit. Abatement B. 1; 9 Porter R. 137, 138; 1 Bay. R. 449, 450, 451.

By the Court.—Lumpkin, Judge, delivering the opinion.

On the 15th day of July, 1836, Majors Henderson, then in life, brought an action of debt in the Superior Court of Randolph county, against Moses Alexander, the intestate of the plaintiff in error. The defendant, at the trial term, confessed judgment and entered an appeal. At August term, 1840, of the Superior Court, the death of Henderson was suggested, and at the October term, 1843, the death of Alexander was suggested. On the 3d dayof March, 1846, John W. Sutlive caused a scire facias to be issued calling upon Moses H. Alexander, as the administrator of the defendant, to show cause why parties should not be made to the action.

The Judge at the Circuit Court ruled that the suit abated, which judgment being excepted to was reversed by this Court, (see 2 Kelly, 81), and parties ordered to be made.

At April term, 1847, of Randolph Court, Moses H. Alexander, by his counsel, came into court and pleaded to the writ of scire facias, that there was no such record as the one therein set forth; and furthermore, that the supposed case therein mentioned, had abated by lapse of time, no proceedings having been had thereon since 1843. Judge Warren, on motion of Sutlive's attorney, overruled and disallowed said pleas, whereupon counsel for Alexander excepted.

It is conceded that a sci. fa. against bail in civil suits, is an action, and that ordinarily, nul tiel record, may very properly be plead thereto. Whether this plea be admissible in the present case is another question. It is objected for the defendant in error, that Alexander having permitted the appearance term of the sci. fa. to elapse, without putting in his defence as required by the Judiciary Act, that he lost the opportunity of doing so afterwards; that he took the risk of having the judgment in his favor excepted to and reversed, as was actually done; and that he must abide the consequences. And we are not prepared to say, that the act organizing this Court has repealed, or in any wise modified that part...