Milsap v. Wildman

5 Mo. 425

Opinion

McGirk, Judge,

delivered the opinion of the court.

Wildman brought a scire facias in the circuit court of Washington .county to revive a judgment and have exe-cution thereof. On the return of the writ, the defendant appeared and .pleaded payment, and at that time the par-^es v/ent to trial, and judgment of revival and execu-tion was given agains t Milsap. He objected to this, on the ground that he was entitled under the law to a continuance to the next term of the court. The counsel for the plaintiff, Milsap, rely on the Statute, (Revised Code, 462, sec. 2,) which says, “every suit that shall not be otherwise disposed of according to law, shall be continued at the term at which the defendant is bound to appear until the next term thereafter, and at such second term every such suit-shall be determined.

This statute settles the question. It has been often decided that a scire facias is an action; it also is a suit.

The counsel for .the other side relies on the statute respecting reviving liens. That statute on the matter now in question, has no bearing. I am of opinion that the court erred in trying the cause at the first term. The other judges concurring ¡herein, it is reversed with .costs, and remanded,