Barron v. Pagles

ORMOND, J. We do not think any of the objections taken to this scire facias, can prevail. The objection to the command of the writ is, that it is not ‘¡ddrossed to any sheriff of the State of Alabama. The language employed is, “to any sheriff of said 423 State. This certainly refers to the State of Alabama, in the margin or venue, and at most, could only be reached by a special demurrer. The objection mainly relied on, is, that the scire facias does not show that the record of the judgment is in the county court, but that it appears to be in the supreme court, out of which the sci. fa. should have issued. By the affirmance of a judgment in this court, superseded by a writ of error bond, the judgment of the inferior court is merged in the judgment of this court, as was held in Wiswall v. Munroe, [4 Ala. 9,] but it does not necessarily follow, that the record remains in this court. The statute, [Clay’s Dig. 309, § 14,] requires the clerk of this court to certify the judgment to the clerk of the court, from which the cause came, whose duty it is to issue execution on the affirmed judgment. The effect of this is, and such was doubtless the design of the statute, to remove the record of the judgmeut into the inferior court. It would be a singular anomaly, if the record should remain in one court, and the power to issue execution was given to the ministerial officer of another. The certificate of the clerk of this court becomes the record of the affirmed judgment. These facts being distinctly alleged in the scire facias, show that the record is remaining in the court out of which the scire facias is sued out.' The court, therefore, erred in sustaining the demurrer to the scire facias, and its judgment is reversed, and the cause remanded.