Shackelford v. Miller

PARSONS, J. Shackelford recovered a judgment against the defendants in error, at the Spring Term of the Circuit Court of Tuskaloosa county, in the year 1827. From this judgment an execution issued within a year and a day, and was returned no property found. No other execution was ever issued, but the plaintiff in error, on the 10th day of December 1S45, sued out a sci. fa. to revive the judgment, and at the Spring Term 1S4-9, filed an amended declaration, stating the facts just mentioned, among others. The defendants in error demurred to the declaration and the demurrer was sustained by the court, and that is now assigned as error. The counsel of the defendants in error now contends that the demurrer was properly sustained, because, as he contends, the act of 1S35>, (Clay’s Dig. 206,) does not enable a plaintiff to revive a judgment in the condition in which this is; since, in this case, an execution was issued within the year and day, and therefore the statute authorises another to be issued without a sci. fa., though ten years and more have elapsed since any execution was issued. But this is contrary to what was held in Vancleave v. Haworth, 5 Ala. 188. It was there determined that the third section of the same act impliedly inhibits the issuing of an execution on a judgment, after a lapse of ten years, although one was sued out within the year and day, but never continued afterwards— and that an execution issued after such a lapse of time, without reviving the judgment by sci. fa., is irregular and subject to be set aside. The counsel admits that the opinion in Vancleave 676 v. Haworth is against him. but he contends that it was overruled in the present case when it was here before on other grounds. — See Miller et al. v. Shackelford, 16 Ala. 95. The answer is, that the precise- question decided in Vancleave v. Haworth, and now again presented in the case before us, did not arise in 'the present case when it was here before, and consequently it was not decided. It is true, the language of the court, in one part of the opinion, went beyond the case before it, and is, perhaps, not reconcilable with what was held in Vancleave v. Haworth; but now upon consideration, we adhere to what was settled in that case. The judgment is reversed and tlie cause remanded.