Boyd v. Dennis , 6 Ala. 55 ( 1844 )

ORMOND, J.

In the case of Collingsworth v. Horn, [4 S. & P.] this court held, that, where an execution had issued in the life time of the defendant to the judgment, and an alias mid plumes have regularly issued, after his death, without the lapse of a term, that the lien of the original execution was preserved; and thaj; the property of the deceased could be sold under the last execution, without a scire facias against his administrator, to revive the judgment.

In this case, there is no controversy about the lien of the first execution. The only question is, whether, in the event of the death of the defendant in execution, after an execution had issued against him, a plumes may be issued after the lapse of more than a year, without reviving the judgment against the administrator.

We think it very clear, that the execution was issued irregularly in this instance. According to the case cited from 4 Stew, & Port., it was allowed thus to continue the lien created by the first execution, and to levy and sell under an alias or pluries, Here, then, was a chasm by the intervention of two entire terms. There was, therefore, no connecting link between the original and alias executions; and the latter being issued after the death of the defendant, was irregular, without a scire facias against his personal representative to revive the judgment.

The judgment of the court below, overruling the motion to quash the execution, must be reversed; and a judgment quashing the execution, be here rendered.