Citation Numbers: 40 Tenn. 575
Judges: Mukinney
Filed Date: 12/15/1859
Status: Precedential
Modified Date: 7/30/2022
delivered the opinion of the Court.
This was a seire facias against the defendant, as executor of Leander Hiekerson, to show cause why the plaintiffs should not have execution de bonis propiis. There was a demurrer to the scire facias, which was sustained.
The plaintiffs recovered judgment against the defendant as executor, before a justice, on the 11th of January, 1859, for $286.88. Execution issued thereon, and was returned no property of the testator’s estate in the hands of the defendant to be found. And, thereupon, the execution and papers in the case were returned by the justice into the office of the Circuit Court; and the clerk, in vacation, issued a writ of scire facias thereon, commanding the defendant to appear at the next term of the Circuit Court, to show cause “ why execution should not issue against his own proper goods and chattels,” &c.
This proceeding was instituted under the Code, secs. 2271, 2272, which are simply a re-enactment of the act of 1822, ch. 43, sec. 1.
The mode of proceeding prescribed is, that, on the return of the justice’s execution against an executor or administrator, “ no property found,” the justice, “on suggestion and application of the plaintiff, his agent or attorney, shall return the papers to the next Circuit Court of his county.” And “upon said papers, scire facias shall be issued, and all other proceedings be had for the satisfaction of such judgment, either out of the goods and chattels, lands and tenements of the defendant, in case he has wasted the assets; or, out of the real estate of the deceased.”
These provisions of the Code, place a justice’s judgment on the same footing with the judgment of the Circuit Court, as respects the modes of proceeding to obtain satisfaction.
Erom these principles it is clear that the proceeding in this case is irregular and void. The clerk had no power or authority to issue the writ. Its issuance is a judicial act, based upon a suggestion made of record, and it must be awarded by the Court.
The demurrer to the 'scire facias was, therefore, properly sustained.
Judgment affirmed.