Sharp's Executors v. Herrin's Adm'r , 32 Ala. 502 ( 1858 )

RICE, C. J.

The scire, facias was sued out from the probate court of Macon county, to revive a judgment which is therein described as a judgment rendered by said court on the 20th May, 1854, for $23,487 02, in favor of Jefferson R. Herrin, administrator with the will annexed of the estate of "William Herrin, against Arnold Seale and Jehu Sharpe, executors of William Sharp, deceased. The parties have in this court expressly waived all questions except four’, which are stated in the agreement attached to the record. The first of those questions is “can such a judgment be revived on scire facias.” To that question we respond in the affirmative; but, in doing so, we wish to be understood as not committed upon the question of the legal sufficiency of the scire facias. — Code, § 2419.

2. To the second question stated in the said agreement of the parties, we answer in the negative. — Code, §§ 1847, 1848; Holly v. Hollinger, 8 Ala. 454; Brasher v. Lyle, 13 Ala. 524; Campbell v. Campbell, 11 Ala. 730; Bartol v. Calvert, 21 Ala. 42; Hogan v. Calvert, 21 Ala. 194; Hunt v. Fay, 7 Vt. Rep. 143; McCollum v. Hinkley, 9 Vt. 143.

[3-4.] To the third and fourth questions stated in said agreement, we answer in the affirmative. — Saltmarsh v. Bird, 19 Ala. 665; Bartol v. Calvert, supra; and other cases cited supra.

We confine ourselves to the questions as stated by the parties. The answers we have given to them require us to declare, that the court below erred in sustaining the demurrers to the 2d, 3d and 4th pleas to the scire facias, and to reverse its judgment for those errors. We deem it unnecessary to decide now as to the sufficiency of pleas numbered 1 and 5; because our decision on the other pleas will probably dispose of the case.

For the error in sustaining the demurrers to the 2d, 8d and 4th pleas, the judgment of the court below is reversed, and the cause remanded.