Nicholson v. Patterson , 21 Tenn. 448 ( 1841 )

Green, J.

delivered the opinion of the court.

. This is a suit by scire facias, against the plaintiff in error, as bail for J. L. Napier, in an action at the suit of the defendant in error. The scire facias sets out and recites the writ of capias ad respondendum, the bail bond executed by the plaintiff in error, the judgment against Napier, the capias ad satisfaciendum, and return of “not found.” The plaintiff in error failed to appear and plead to the scire facias, and judgment was rendered against him by default. This writ of error is prosecuted to reverse and arrest this judgment, because the scire facias does not show, that an affidavit was made by the plaintiff below, as required by the act of 1831, before the issuance of theca, sa. This court decided, in the case of Street vs. Vandervoot, 7 Yerg. Rep. 436, that the affidavit required by the act of 1831, ch. 40, sec. 5, constitutes no part of the record in the cause. The opinion of the court, in that case, was reviewed, approved, and re-affirmed at the present term, in the case of Saunders & Martin vs. Gallaher.

The consequence is, that a scire facias need not recite, that an affidavit was made before the issuance of a ca. sa. A scire facias is founded upon a record, and recites nothing that is not of record. If no affidavit was made, and the defendant in the sci. fa. supposed the law required that one should be made in such a case as this, he should have availed himself of the omission, by pleading that fact to the sci. fa. Pie has failed to plead, and judgment by default has been rendered against him. It is now too late to come with the objection. Let the judgment be affirmed.