Henry Austin's Ex'Ors v. Abut G. Reynolds's Adm'r.
| Decision Date | 01 January 1855 |
| Citation | 13 Tex. 544 |
| Parties | HENRY AUSTIN'S EX'ORS v. ABUT G. REYNOLDS'S ADM'R. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Brazoria. The petition alleged that Andrews had departed this life. The amended petition making his representatives parties was filed June 16, 1852. The executions which had been issued on the judgment after its affirmance by the supreme court did not appear. The petition alleged that one was issued on the 13th April, 1841, and that “subsequently other executions have been regularly and from time to time issued on said judgment.”
Alexander & Atchinson, for appellants.
J. P. Jones, and P. McGreal, for appellee.
This was a proceeding by a scire facias to revive a judgment obtained by Sawyer as administrator of Reynolds v. Henry Austin and Edmund Andrews, in Brazoria county. The petitioner does not ask to revive the judgment against the representatives of Andrews. The petitioner prayed to revive the judgment by service of scire facias upon Henry Austin, then a citizen of the county of Galveston, who died after the commencement of these proceedings, and his executors were made parties. A demurrer to the petition was sutained on the exception that Andrews's representatives ought to have been made parties.
The plaintiff had leave to amend, and he then made the representatives of Andrews parties. The defendants demurred, stating various grounds of exception. The exceptions taken by the representatives of Andrews were sustained, and those by Austin's representatives were overruled, and a verdict and judgment against them for the amount of the judgment originally rendered, less by the amount perpetually enjoined, from which the executors appealed.
The main ground relied on to reverse the judgment is, that the revival should have been entered as the original judgment was rendered jointly against the representatives of both Austin and Andrews, and not against one of them only. That where a judgment has been awarded against several defendants, they must all be joined in the scire facais to revive the judgment, should it have become dormant by the omission to issue execution in due time, seems to have been held to be a sound rule of law in the English courts for a long time back.
The case of Panton v. Hall was decided the first year of William and Mary, and is reported by Salkald as follows, i. e., (2 Salk., 598.) And several older authorities are referred to. The case just cited was recognized as authority in Kentucky in the case of Mitchell's heirs v. Smith's heirs. (1 Litt., 243.) The court say: “There is no doubt where a joint judgment is obtained against several, and one of them dies, that an execution, upon suggesting his death, may issue against the survivors without a scire facias to revive; but it is well settled that a scire facias cannot issue to revive against the representatives of the deceased defendant without joining the survivors, for a scire facias, being a judicial writ, must pursue the nature of the judgment, and that being joint, the scire facias must be so too.” The judgment was reversed and the scire facias quashed. The case of Williams v. Fowler (3 Monroe, 316) is in principle very much like the one under consideration. After referring to other errors the court proceeds: ...
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Sias v. Berly, 4646
...to appellant in Texas would have been sufficient to support the judgment of revivor, or for execution of the judgment.' The decision of the Austin court does not, of course, determine whether scire facias in Texas to revive a judgment for debt which had become dormant under the former terms......
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Wygal v. Myers
...bond, that proceeding might have required the estate to be joined, in order "to preserve the nature of the original judgment." Austin v. Reynolds, 13 Tex. 544; Carson v. Moore, 23 Tex. 450; and Henderson v. Vanhook, 24 Tex. 358. Of this, we express no opinion. The law in force at the time t......
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...being made parties to the proceeding, such judgment is insufficient to support an execution issued by virtue thereof. Austin's Ex'rs v. Reynolds' Adm'r, 13 Tex. 544; Carson v. Moore, 23 Tex. 450; Baxter v. Dear, 24 Tex. 17; Henderson v. Van Hook, Id. 358; Slaughter v. Owens, 60 Tex. 671. Un......
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