Hopkins v. Howard , 12 Tex. 7 ( 1854 )

Wheeler, J.

If the present were an original action, the-want of a petition would be a fatal error. But this Court has decided that a scire facias to revive a judgment is not a new suit, but is the continuation of the former one. (Perkins v. Hume, 10 Tex. R. 50; 9 Johns. R. 259.) The statute (Dig. Art. 2378) gives the right torevi ve a j udgment, either by scire facias or an action of debt, where execution has not issued within the year. Though a scire facias is in the nature of an original," in that the defendant may plead to it, and in that respect is considered as an action, (McFadden v. Lockhart, 7 Tex. R., 575,) yet in other respects it is deemed a judicial, not an original writ, (3 Tom. Law Die. “ Scire Facias”) and, consequently, is not the commencement of the suit. (Id. Tit. “Writ,” 3 Bl. Com. 272, 282.) Being a judicial writ, and issued after the commencement and in the continuation of the original suit, a petition is not necessary in order to obtain the ' writ.

The want of an affidavit of the justness of the debt was error, for which the judgment must have been reversed on appeal or writ of error. But though erroneous by reason of the omission, the judgment was not thereby rendered void. It is valid and binding until reversed. The defendant can not avail himself of errors in the judgment by pleading to the scire facias. The District Court can not by means of this proceeding revise and reverse or annul its judgments. Although the judgment be erroneous, debt lies, and of course a scire facias to revive, until it has been reversed. (Bullock v. Ballew, 9 Tex. R. 500.)

We are of opinion that the Court did not err in its judgment, and that it be affirmed.

Judgment affirmed.