Swan v. Hazen ( 1845 )

Turley, J.

delivered the opinion of the court.

Stewart obtained a judgment by affirmance in the Supreme Court of Errors and Appeals at Knoxville, against Birdseye & Hazen, and at the same term, also, a judgment on motion against Jacob Peck, security for the appeal; before the judgment was satisfied Stewart died. Moses M. Swan administered on his estate and has issued a scire facias against Birdseye & Hazen to show cause why he should not have execution against them upon the judgment, and it is now. shown as cause, that the scire facias is not as broad as the judgment upon which execution is sought to be had — that Jacob Peck is a party to it, and that the scire facias should have been against him also. • We do not think so — the judgment against Birdseye & Hazen, and the judgment against Peck, are in different rights; the one is a judgment of affirmance on appeal, the other is an original judgment on motion. They need not have been, and, properly speaking, ought not to have been united.

We think, therefore, that the scire facias describing a judgment against Birdseye & Hazen is properly supported by a judgment of affirmance against them; although at the same time, and by the same entry, a judgment was rendered on motion against their security for the appeal.

Let the execution against Birdseye & Hazen be issued.