Baker, Fry & Co. v. Ingersoll , 37 Ala. 503 ( 1861 )

R. W. WALKER, J.

The scire facias, following in tbis respect the original judgment, was sued out in the name of AllemMattbews, for the use of Baker; Fry & Co. Matthews, the nominal plaintiff, died after the rendition of the original judgment, and .before,the issuance of the scire facias; and the question now presented is, whether this fact is a bar to, the proceeding, or whether, pm the suggestion of the death of the nominal' plaintiff, the scire facias could proceed in the name of the beneficiaries.

The Code.provides, that, “ when suit is brought for the use of another, the death of the nominal plaintiff does not abate the suit, b.ut it proceeds in the name of the beneficiary.” — Code, § 214-7. This statute renders unnecessary the revival of the action, where tiro nominal plaintiff dies during its pendency ; .but, where the person who has the legal interest in the. cause of action, dies, there is nothing in this law which authorizes .the subsequent instituti.on.of a,suit in the name of such person, for-.the use.of the party having the beneficial interest. Such a case, is unaffected by statute in this State, and the personal representative must, as at common law, be the actor, of. record. And where suit is brought in the na,me of one person, for the use of another, the defendant may plead, either in bar. or abatement, that the nominal plaintiff was dead at the commencement of the suit. — Jelks v. Edwards, 6 Ala. 143 ; Tait v. Frow, 8 Ala. 543.

A scire facias on a judgment is sometimes, for some purposes, regarded,-not as a new action, but as a mere continuation of the original suit. Thus, it must issue out of the court in which the judgment was rendered ; -.matter .which might have been,, pleaded in defense of. the original action, cannot be pleaded in defense of the scire facias; and no new judgment for debt or damages can be rendered on the spire facias, but the old one is,simply, called into .action by a-judgment that the plaintiff have execution. — Murray v. Baker, 5 B. Mon. 572 ; Norton v. Beaver, 5 Ohio, 178. In other respects, .bbwever, the proceeding.'by scire facias must be regarded as. a new suit,. Thus, the defendant may plead to it matters subsequent to the rendition of the judgment'Sought to be revived ;. and as respeots-the parties to the proceeding, it is in the nature of an action upon the judgment, and governed by the rules .applicable to ordinary suits upon, judgments. Consequently, a scire facias can only be maintained 'in the 'name of, him who has the legal title to the judgment; that is, in the name of the original plaintiff, or, afterhis death, of his personal representative.— See Duncan v. Hargrove, 22 Ala. 160; Hanson v. Jacks, ib. 550; Pickett v. Pickett, 1 How. Miss. 267 McAfee, v. Patterson, 2 Sm. & M. 595 ; Gonnigal v. Smith, 6 Johns. 106 ; Crary v. Turner, ib. 53 (note a) ; Forbes v. Tiffany, Inda. 204; Ensworth v. Davenport, 9 Conn. 390; Smith v. Harrison, 33 Ala. 709. It follows, that on the death of the nominal plaintiff in a judgment, a scire facias guare execu* tionem non must, like an original suit on the judgment, be conducted in the name of his-personal representative, and cannot properly be issued, either in the name of the origr inal parties to the judgment, or.of .the benificiary alone.

Judgment affirmed. ¿