Graham v. Chandler , 15 Ala. 342 ( 1849 )

CHILTON, J.

1. There was no error in permitting the withdrawal of the former pleas, and the filing of new pleas by the defendant in error. This was a matter within the discretion of the primary court, and consequently cannot be made the ground of reversal here. Crawford v. Chandler, 5 Ala. 61.

2. The demurrer to the third plea presents. the question, whether if an execution issue in favor of a sole plaintiff who was dead at the time of its issuance, the sheriff is bound to execute it. For the plaintiff in error it is insisted, that the execution was irregular, and voidable at the election of the defendant therein, but not absolutely void; and we have been referred to the case of Day v. Sharp, 4 Whar. Rep. 339, and Darlington v. Speakman, 9 Watts & Serg. 182. In the first case, the supreme court of Pennsylvania hold, that an execution issued in the name of a plaintiff who is dead, and without a scire facias, to substitute his representatives, is not absolutely void, and that the party may justify under it. The other case affirms substantially the same doctrine. These cases were doubtless influenced by the statute of Pennsylvania, in respect to the revival of judgments in cases where the plaintiffs have died, and cannot be regarded as correct expositions of the law in this state. • This court has repeatedly held, that an execution which issues against a sole defendant who is dead, there being no' lien created by the issuance of previous executions, is a nullity, and is absolutely void. Collingsworth v. Horn, 5 Stew. & Por. 237; Holloway v. Johnson, 7 Ala. Rep. 660; Henderson et al. v. Gandy’s Adm’r, 11 Ala. Rep. 431; Moore & Cock v. Bell, 13 Ala. Rep. 459. In the case last cited, we held, that an execution could not be sued out in the name of a plaintiff after he is dead, and that if one did issue, is should be quashed on motion. The point under consideration was however fully considered in Stewart v. Nuckols, at the present term of this court, and it is there held, that the execution issuing after the death of the plaintiff is a nullity. See also, Nicholson v. Burke, at this term. These decisions are decisive of this point, and are conclusive to show, that the, sheriff is not liable for failing to make the money upon the execution specified in the suggestion exhibited against him, if the facts specified in the third plea be true, and the demurrer admits their truth.

As this point is decisive of the case, it becomes wholly unnecessary to examine the other questions raised by the counsel.

Let the judgment be affirmed.