Carson v. Moore , 23 Tex. 450 ( 1859 )

Wheeler, C. J.

The judgment of revivor is so imperfectly and erroneously rendered, that it cannot be affirmed. It names one of the defendants, in the original judgment, as plaintiff. This is a clerical mistake, doubtless, but it would require that the judgment be reformed, by reversing, and rendering the proper judgment, if there were no other irregularity in the proceedings.

But the objection to the rendition of the proper judgment is presented, that the original judgment was rendered against two jointly, and the scire facias to revive, appears to have been served upon but one. The question arises, can the judgment be revived against one only ? The authorities upon this question were examined in Austin v. Reynolds, 13 Texas Rep. 544. The result seems to be, that where a joint judgment has been recovered against several, it cannot be revived by a scire facias against one ; for the scire facias being a judicial writ, must pursue the nature of the judgment; and that being joint, the scire facias must also be joint. It seems to have been the opinion of the court in that case, that the plaintiff could not dismiss as to a defendant not served, in a proceeding by scire facias; and that where he desires, for any sufficient cause, to revive a judgment against one or more of several, without joining all, his remedy is by an action of debt on the judgment. (13 Texas Rep. 547.)

The scire facias in this case was joint, but was served upon but one of the defendants. The judgment, manifestly, cannot be revived against the defendant not served; and he appears to have been the principal in the obligation on which the judgment was recovered. It might work a hardship upon the other defendant, to revive the judgment against her alone, if it were competent to do so. We are of opinion, therefore, that the judgment be reversed, and the cause remanded to perfect service, and for further proceedings.

Reversed and remanded.