Bettis' v. Taylor

COLLIER, C. J. The plaintiff presented to the court the transcript of a record from the Circuit court of Mobile, which shewed that the defendant recovered a judgment against Wm. II. Howell, and caused an execution to be issued and levied on some negro slaves; to which the plaintiff’s intestate, as the administrator of Caleb Howell, deceased, interposed a claim under the statute. Upon trial, the slaves were condemned to the [334] satisfaction of defendant’s execution, and a judgment rendered against the plaintiff’s intestate, in his individual capacity. The plaintiff’s intestate died since the rendition of the judgment against him, and the court was moved for process to bring the case into this court, for the revision of that judgment. The case of Seawall vs. Bates' Adm'r.* is an authority to shew, that where a party dies after judgment, process may issue from this court to bring the case up. In that case, a certiorari was awarded. We think a writ of error the more appropriate remedy: anddo therefore direct, that a writ of error issue in the name of the plaintiff, as administrator, to bring up a transcript of the record; that a scire facias issue advising the defendant of the issuance of the writ of error, and requiring him to shew cause why he should not be allowed to prosecute it: and that the writ of error contain a clause, directing execution of the judgment to be suspended, upon the plaintiff entering into bond with sufficient security, in a like penalty, and with like condition, as is required where the writ of error issues from that court. Footnotes [*] 2 Stew. Rep. 462; 3 ib. 199.