Lowry's Administrator v. Newsom

BRICKELL, J. The statute authorizes the revival by scire facias of a decree of the court of probate, on which an execution has not been sued out within one year after its rendition. R. C. § 2830. The process issued in this case was intended as a scire facias under this statute, but it is very defective, and subject to demurrer on several grounds. Our inquiry is, however, limited to the causes of demurrer, specially assigned. If these are not well taken, other defects, however apparent, cannot avail the appellant. The first cause of demurrer assigned is, that by the terms of [572] said scire facias the defendant is not called on to show cause why the plaintiffs should not have execution on their decree. This objection was met and cured by an amendment in the court of probate. To the allowance of the amendment the appellant reserved an exception. A scire facias may, at the election of the party suing it out, serve as process and pleading ; or he may treat it as process only, and declare upon it, as on other process. Toulmin v. Bennett, 3 Stew. & Port. 220. Whether regarded as process or pleading, it is within the statute of amendments. Sartin v. Weir, 3 Stew. & Port. 421; Miller v. Shackelford, 16 Ala. 95. The second ground of demurrer is, that the scire facias was not made returnable to a regular term of the court of probate. If it could be conceded that the scire facias is in this respect objectionable, the defect is not matter of demurrer. A defect in process, either in the mode of suing it out, or in its return day, is the subject of a plea in abatement. A demurrer-presents only defects in pleading. The fourth ground of demurrer, if it could be regarded as disclosing any valid objection to the scire facias, presents only a defect in it as process, and not as pleading, and was, for the reason we have stated* if no other, properly overruled. The scire facias is not at all uncertain in its description of the decree sought to be revived. The court in which the decree was rendered, the day -of its rendition, the accounts thereby adjudged, and the party in whose favor, and against whom it is rendered, are averred. This is certainly all that is requisite to enable the court to pronounce judgment of revivor. The last ground of demurrer was properly overruled. If the judgment sought to be revived was improperly rendered, partly for gold, and partly for currency, the defect would be merely matter of error, or irregularity, affecting its validity only in a direct proceeding for its reversal. But, in this case, the decree was properly rendered, partly for gold, and partly for currency. It was rendered on the final settlement of the accounts and vouchers of appellant as the administrator of William Lowry, deceased. On that settlement, it was ascertained that he had, of assets, a certain sum in gold, and a certain sum in currency, distributable to the widow and next of kin of his intestate. No other decree than one distinguishing between, and distributing these sums separately, would have met the justice of the case. A decree against him for an aggregate sum in dollars, which he could have paid in legal tender currency, would have enabled him to make a profit from the assets, to which he was not in morals or law entitled. The assets in his hands belonged to the distributees, and were properly decreed to them in specie. The judgment is affirmed.