Taylor v. Miller

70 Tenn. 153

• Court: Tennessee Supreme Court
• Decided: April 15, 1879
• Status: Published

Opinion

Cooper, J.,

delivered the opinion of the court.

On the 8th of March, 1871, Pitser Miller recovered a judgment in the Circuit Court of Shelby county against Mrs. L. J. Bradley, then a widow, for $1,386.05 and costs. On the 13th of June, 1874, he suggested and proved the intermarriage of John A. Taylor and L. J. Bradley, and obtained an order that scire facias issue to John A. Taylor to appear and show cause why the judgment should not be revived and execution issue against him.

The scire facias issued, and was duly executed, requiring Taylor- to appear in the court commencing on the third Monday of September, 1874.

On the 6th of October of that term, the defendant having made no defense, a judgment final by default was taken reviving the judgment and ordering execution to issue against Taylor as of the date and for the amount of the original judgment. During the same term, upon motion of Taylor', and cause shown, the judgment was set aside, and he was allowed! to plead to the scire facias. He put in a plea that previous to his intermarriage with his wife they had entered into a marriage contract, by which it was agreed that neither should be in anywise bound for the debts of the other, contracted before marriage, and that the property of each should be used for the payment of the debts of each as though no marriage had been entered into. This plea was demurred to, and the demurrer sustained.

No other defense being made, another judgment was, on the 11th day of May, 1875, taken reviving the judgment against Taylor and wife. The case has since been brought up by writ of error sued out by the husband and wife.

The original judgment being against the wife dwn sola, tbe only object of the so ire faoias was to have execution against the husband. The proper judgment, upon a scire facias, in such case would seem to be, as in scire facias against bail, that the plaintiff have execution on the original judgment. Peyton v. Stuart, Peck, 156. And inasmuch as the judgment is already against the wife, the objection is highly technical that the scire facias should have been against both- .the husband and wife. Be this as it may, no such objection was made (o the scire facias in the court below. The defendant put in the only defense on which he chose to rely, and the demurrer being special, as required by statute, its causes went only to the plea, and would not reach any defect in the scire •facias as would have-been the rule previous to the statute. Hobbs v. M. & C. R.R. Co., 12 Heis., 526. The judgment taken was, in substance, that the plaintiff have execution on the original judgment against husband and wife.

There is no such error on the merits as will justify a reversal, and the judgment will be affirmed.