Mims v. McKenzie

Court of Appeals of Georgia

Mims v. McKenzie

96 S.E. 441, 22 Ga. App. 571, 1918 Ga. App. LEXIS 607

CourtCourt of Appeals of Georgia

DecidedAugust 1, 1918

Docket9190

StatusPublished

Cited by4 cases

This text of 96 S.E. 441 (Mims v. McKenzie) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mims v. McKenzie, 96 S.E. 441, 22 Ga. App. 571, 1918 Ga. App. LEXIS 607 (Ga. Ct. App. 1918).

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Opinion

Harwell, J.

(After stating the foregoing facts.) 1. At common law it seems that a valid execution could not issue in favor of a deceased' plaintiff without a revival of the judgment by scire facias. 17 Cyc. 993. Such does not appear to'be the law in this State. By statute in Georgia it is provided, in the first place, that “All executions must follow the judgment from which they issue, and describe the parties thereto as described in such judgment.” Park’s Ann. Code, § 6022. Section 5605 of the code provides that when either the plaintiff or the defendant shall die pending a trial, or after trial and before the expiration of the time to enter an appeal, the legal representative of the party dying may enter an appeal within thirty days, etc.; and if such appeal is not entered within the time prescribed, “judgment may be entered and execution issued as though the deceased were in life, without making the representative a party.”

“At common law, if a party died after judgment but before the issuing of execution, it was necessary to issue a scire facias to. make the heir or legal representative of such decedent a party to the judgment, but since the passage of the judiciary act of 1799, which makes the judgment a lien on all the property of the defendant from the time of its rendition, the reason of the rule, and consequently the rule itself, has ceased to exist in this State.” Smith v. Lockett, 73 Ga. 104. From the foregoing it appears that when a plaintiff dies after judgment is entered and before execution is issued thereon, execution may nevertheless be issued in the .name of the plaintiff. Compare' code-section 5616. There is no merit, therefore, in the contention of the defendant as set out in the fourth paragraph of the affidavit of illegality.

2. Certain other grounds were set out in the affidavit of illegality, but the plaintiff in error did not argue them in his brief, and they will be treated as abandoned.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.

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Harwell, J.

(After stating the foregoing facts.) 1. At common law it seems that a valid execution could not issue in favor of a deceased' plaintiff without a revival of the judgment by scire facias. 17 Cyc. 993. Such does not appear to'be the law in this State. By statute in Georgia it is provided, in the first place, that “All executions must follow the judgment from which they issue, and describe the parties thereto as described in such judgment.” Park’s Ann. Code, § 6022. Section 5605 of the code provides that when either the plaintiff or the defendant shall die pending a trial, or after trial and before the expiration of the time to enter an appeal, the legal representative of the party dying may enter an appeal within thirty days, etc.; and if such appeal is not entered within the time prescribed, “judgment may be entered and execution issued as though the deceased were in life, without making the representative a party.”

“At common law, if a party died after judgment but before the issuing of execution, it was necessary to issue a scire facias to. make the heir or legal representative of such decedent a party to the judgment, but since the passage of the judiciary act of 1799, which makes the judgment a lien on all the property of the defendant from the time of its rendition, the reason of the rule, and consequently the rule itself, has ceased to exist in this State.” Smith v. Lockett, 73 Ga. 104. From the foregoing it appears that when a plaintiff dies after judgment is entered and before execution is issued thereon, execution may nevertheless be issued in the .name of the plaintiff. Compare' code-section 5616. There is no merit, therefore, in the contention of the defendant as set out in the fourth paragraph of the affidavit of illegality.

2. Certain other grounds were set out in the affidavit of illegality, but the plaintiff in error did not argue them in his brief, and they will be treated as abandoned.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.

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96 S.E. 441, 22 Ga. App. 571, 1918 Ga. App. LEXIS 607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mims-v-mckenzie-gactapp-1918.

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