Calhoun v. Adams

Smith, J. In 1872 the firm of Adams, Cockburn and Picton recovered a judgment in the Chicot Circuit Court against John C. Calhoun for $6,444.62. In 1882 Adams, one of the plaintiff firm, filed his petition in the same Court, suggesting that said judgment, which was alleged to be wholly unsatisfied, had been assigned to him and praying for a revivor to the end that he might have execution thereof. A scire facias was issued, which correctly described the judgment, recited the averments of the petition and required the defendant to show cause against the revivor. The defendant appeared and demurred to the petition and scire facias because 1, They do not state sufficient facts; 2, The judgment had been irregularly and illegally obtained. The demurrer was overruled and the defendant declining to plead further, the judgment was revived, not in the name of Adams individually, but as it was originally entered. 1. revivor OP JUDGments; saja. The second cause of demurrer needs no notice. The matter stated could not be raised by demurrer and would have been bad if pleaded. No errors or irregularites are perceived in the original judgment; but if there had been sucb, they could not he taken advantage of in this proceeding. Anthony v. Humphries, 9 Ark., 176. 2. same : to revive not necessary-The petition of Adams was unnecessary. The writ of scire facias performs the double function of a declaration and a summons. Trapnall v. Terry, 27 Ark.,70. So far as the right to revive was concerned, it was wholly immaterial whether Adams was sole owner of the judgment, or whether the ownership continued as at the time of its rendition. The petition, therefore, which was designed to advise the court of the change of ownership, may he disregarded. The writ is undoubtedly framed upon the notion that Adams, having become the real party in interest, may maintain proceedings to revive the judgment. Now a scire facias, being ajudicial writ, ought to pursue the nature of the judgment. It should run in the names of all the plaintiffs in the action against all' the defendants, where all the parties are in existence. It is not the institution of a new suit, but the continuation of the old one. And the object is, not to procure a new judgment for the debt, but execution of the judgment that has already been obtained. Greer v. State Bank, 10 Ark., 455; Bolinger v. Fowler, 14 Id., 27; Brearly v. Peay, 23 Id., 172; Austin v. Reynolds, 13 Tex., 544; Carson v. Moore, 23 Id. 450. \'et inasmuch as the judgment of revivor was correct and as the recitals in the scire jadas point to the judg‘ ment sought to be revived with such certainty that it is impossible for the defendant to have been mis-led to his prejudice, the formal amendment of the writ so as to make the proceedings harmonize and the whole record consistent with itself, must be considered as having been made below. For this abundant authority maybe found in our statutes and decisions. Gantt’s Dig. Sec’s., 4611-12, 4616-17, 4619, 4699; Anthony v. Humphries, 9 Ark., 183; Same Case, 11 Id., 663; King v. Caldwell, 26 Id., 405. Affirmed.