Turner Adm'r v. Dupree's Adm'r

19 Ala. 198

Opinion

PARSONS, J.

A scire facie to have execution upon a judgment, is only a continuation of the former suit. — 2 Dunlap’s Practice, 1078 ; 1 Term, 267-268-388. As it is the former judgment that is to be revived, and the force of which is thus to be continued by process from it, it must bo a judgment from which an execution could once have issued.

The decree of the Orphans’ Court was one from which no execution could ever have been issued. It does not ascertain the person or persons in whose favor the recovery was had, but the amount was to be paid to the personal representative or legal heirs entitled thereto of Mildred Dupree, deceased. This, as a decree, was void for uncertainty.—Joseph’s adm’r. v. Joseph’s Legatees, 6 Ala. 280. There was error therefore, in awarding the execution, and the judgment is reversed, and the cause remanded.