Grier v. Jones , 54 Ga. 154 ( 1875 )

Trippe, Judge.

1. The record is somewhat confused, and it is impossible to tell whether the scire facias was intended to make the executrix a party to the' proceedings in the matter of the affidavit of illegality which were disposed of at the November term, 1870, or to the motion to set aside the judgment sustaining that affidavit, which was determined at the November term, 1872, by the same being overruled; or whether it was to make her a party to a new proceeding to be instituted to set aside the judgment sustainng the illegality. But take it as it is staled to be by the reporter, and we rather think that was the intention, to-wit: that it was intended to proceed again directly with a motion to set aside that judgment — the judgment rendered at November term, 1870, sustaining the illegality. The executrix replied that there was no such case pending against her testator at his death, but that judgment had been rendered therein prior to his death. The great difficulty in the way of movant, or the plaintiff in the scire facias, is that he proposes to set aside a judgment, whilst there has already been a judgment rendered in a similar proceeding for the same purpose, which is still standing unrevoked. That is the judgment of November, 1872. Whilst, it stands it is a bar to any further action instituted for the purpose of setting aside the other judgment, the one of November, 1870.

2. The question was made whether a scire facias was. the proper mode to make the legal representative of a deceased person a party to proceedings to set aside a judgment in favor of the deceased. If such proceedings were commenced in the lifetime of the party, his representative might be moved against by scire facias. But if not, then the proper mode would be to take an order reciting the judgment — the grounds relied on, the death of the party, the qualification of the representative — and calling upon him (o show cause why the judgment complained against should not be set aside. In other words, as there would be no case pending, the matter could be moved in, as it would be done if the party had not died, except that all the additional allegations which his death makes it necessary to aver in order to show the facts, would have to be made. As to the service, the motion or the order should be served as -other motions. As the facts appear in the record, there was error in making the executrix a party.

Judgment reversed.