Watkins v. Cleveland National Bank

1 Shan. Cas. 439

• Court: Tennessee Supreme Court
• Decided: June 15, 1875
• Status: Published

Opinion

Nicholson, C. J.,

delivered the'opinion of the court.

On the 5th of December, 1874, Watkins appealed from a judgment rendered against him, in the circuit court of Hamilton county, and gave E. D. Hamilton as surety on his recognizance or appeal bond. Before the judgment was affirmed in this court at its present term, E. D. Hamilton died, and his widow, Mary H. Hamilton, qualified as administratrix. Upon the affirmance of the judgment here scire facias was ordered'to issue to Mary H. Hamilton, to show cause why the suit should not be revived against her as such administratrix. She appears and pleads in abatement to tbe sci. fa. that six months have not elapsed since her qualification as administratrix of her intestate, and therefore she is not liable to be sued. To this plea the plaintiff has demurred.

The demurrer is well taken. The scire facias is not to' revive a final judgment rendered against the intestate, which would be a new suit; the object of the scire facias in this case is, that the suit may be revived in the name of the administratrix, to the end that judgment may be rendered against her. It is, therefore, a continuation, of a suit already pending in which the intestate was not affected by the provision of the Code [Shannon’s Code, sec. 4007], which exempts administratrix from suit for six months. The demurrer is, therefore, sustained, and judgment will be rendered.