Kirby's Adm'r v. Anders

BICE, J. —Section 1922 of the Code authorizes an execution to be issued against an executor or administrator and Ms sureties, whenever an execution for money has issued from the Probate Court against such executor or administrator, and has been returned to any regular term of such court “ no property”, by the sheriff of the county. But no power is conferred on that court, by this section or by any other part of our law, to render a judgment against the sureties of an executor or administrator on such return of “ no property.” Clarke v. West, 5 Ala. 117. It is only by virtue of the statute, that an execution is allowed to issue against the sureties on such return of “ no property”. The statute gives this summary remedy only against the sureties ; and the courts cannot extend it to the administrator of a surety.—Jenkins v. Gray, 16 Ala. 100. If a surety dies before such return of no property, the summary remedy allowed by the statute fails as to him. Thompson v. Bondurant, 15 Ala. 346. And our opinion is, that the fair legal conclusion from the recitals in the scire facias in this case is, that the surety John Kirby died before the return of “ no property” was made. For the scire facias issued in less than ten days after said return was made, and shows that Spencer was, on the day it was issued, the administrator with the will annexed of said Kirby ; and under our Code, such an administrator could not have been lawfully appointed in less than ten days after the death of the testator. — Code, §§ 1632, 1633, 1657, 1663, 1664, 1665, 1675. But if the administration bond had the force and effect of a judgment against Kirby at the time of his death, it is certain that no execution issued thereon against him before his death ; and therefore, if every other objection to this proceeding by scire facias were waived, it must fail, under the rule announced in section 1930 of the Code, which, in effect, is, that where a judgment has been rendered against the decedent before his death, and no fieri facias has issued thereon during his life, no execution thereon can issue against the personal representatives, nor can the judgment be revived against them except by suit on the judgment. In every point of view, the scire facias and judgment thereon rendered in the court below are unauthorized by law, That [469] judgment is reversed, but the cause is not to be remanded : the judgment of reversal is to be so entered here, that the scire facias be quashed, and the appellant recover of the appellee the costs of this court and of the court below.