Bank of Charleston v. Moore , 6 Ga. 416 ( 1849 )

By the Court.

Lumpkin, J.

delivering the opinion.

The plaintiff having entered up judgment against the estate of Joshua G. Moore, the defendant, without making the representatives of George W. Moore, the security on appeal, a party, could the plaintiff afterwards, upon scire facias, charge the estate of George W. Moore with the judgment ?

[1.] The Court below decided that this could not be done, for the reason that there was no case pending in Court upon which this proceeding could be predicated. Is not this equally true in every instance, where it is sought to make the bail liable, upon a return of non est inventus to the capias against the principal ? A scire facias is usually founded on some matter of record, unless it be to repeal a charter or such like purposes. If it be to enforce a recognizance, it is an original proceeding, but if sued out upon a judgment, as in the present case, it is only a continuation of the former suit. 1 Durnf. & East, 388.

What is the undertaking of the security on appeal ? It is not primary, but ultimate, that he will pay the eventual condemnation money ; that is, whatever shall be recovered against his principal. It would seem, therefore, that the liability of the security did not accrue until after final judgment against the original party, and that scire facias or suit on the appeal bond would be the proper remedy.

[2.] It is true, that the Act of 1826, allows the plaintiff to enter up judgment against the principal and security on appeal, jointly or severally. Hotchkiss, 602. But this is cumulative and permissive only, not imperative. He may do it, or else, if he see fit, pursue his Common Law redress, by writ of scire facias, or action of debt on the bond. Could judgment go, under this Statute, against the representatives of a deceased security within twelve months from the date of their qualification? We think not. The creditor would have to wait, then, the expiration of' this period, or proceed to judgment separately against the original party, and upon his default, in due time resort, as he has here done, and we think properly, against the estate of the security.

The security on appeal is never treated or considered as a coordinate party during the progress of the suit. He is not known to the record as such. He is never notified of amendments made' to the pleadings, or the filing of interrogatories. His death does not suspend the suit — better for him that it should not. "When-called upon to answer, he can plead to the writ, and show any irregularity in the record, or that the judgment was fraudulently and collusively obtained, or that it has been satisfied or released,, or any other matter that the law. judges sufficient for his discharge!.

Judgment reversed-