Bryant v. Smith ( 1869 )

Alvin Hawkins, J.,

delivered the opinion of the Court.

The various orders of the Circuit Court, awarding the writ of scire facias in this case, are unauthorized and erroneous.

There is no authority under our practice for suing out an original scire facias in the Circuit Court to revive a judgment before a justice of the peace.

A scire facias to revive a judgment is in the nature of a suit; and the appeal in this case, from the judgment of the justice, upon the scire facias issued by him, did not have the effect to remove the suit in which the original judgment had been rendered, into the Circuit Court. - :

The scire facias issued by the justice, and which had been taken to the Circuit Court by appeal, is clearly, defective, so much so that no judgment of revivor can be pronounced upon it; but the remedy is not by suing out an original scire facias in the Circuit Court, but by amending the process issued by the justice of the peace, under the provisions of section 4177 of the Code.

No application, however, to amend the process was made, and no disposition whatever of that writ has been made in the Circuit Court.

The judgment of the Circuit Court, from which an appeal in error is prosecuted to this court, is not a judgment of revivor, but is one of recovery, and is clearly erroneous upon that ground, and must be reversed.

If the case was before us for adjudication, we should have no hesitation in declaring the judgment sought to be revived in this case — as the same appears in the bill of exceptions — absolutely void, and incapable of being revived. But we do not think the appeal from the judgment of the Circuit Court, upon the scire facias sued out in that court, can authorize us to adjudicate the right of the plaintiff in the scire facias issued by the justice, and carried into the Circuit Court by appeal, to have the original judgment revived.

The scire facias carried into the Circuit Court by appeal, is still pending in that court.

The cause will be remanded to the Circuit Court. If the plaintiff desires it, upon a proper application, the scire facias issued by the justice may be amended upon such terms as the Court may deem just and proper.