Hopkins v. Howard
Texas Supreme Court
Error from Red River. This was a scire facias (without petition) to revive a judgment and have execution. The defendant pleaded to the scire facias, that the judgment was void, because rendered by confession, and without process, and the justness of the debt was not sworn to as required by Article 770 of the Digest. The record of the former suit was brought before the Court, and the oath required by the statute did not appear.
Read the full summary
Error from Red River. This was a scire facias (without petition) to revive a judgment and have execution. The defendant pleaded to the scire facias, that the judgment was void, because rendered by confession, and without process, and the justness of the debt was not sworn to as required by Article 770 of the Digest. The record of the former suit was brought before the Court, and the oath required by the statute did not appear. The Court ruled that it was not necessary that it ■should appear by the record; and gave judgment for the plaintiff, and the defendants brought a writ of error. Two…
1Opinion of the CourtWheeler, J.
If the present were an original action, the-want of a petition would be a fatal error. But this Court has decided that a scire facias to revive a judgment is not a new suit, but is the continuation of the former one. (Perkins v. Hume, 10 Tex. R. 50; 9 Johns. R. 259.) The statute (Dig. Art. 2378) gives the right torevi ve a j udgment, either by scire facias or an action of debt, where execution has not issued within the year. Though a scire facias is in the nature of an original," in that the defendant may plead to it, and in that respect is considered as an action, (McFadden v. Lockhart, 7…
2Cited by13 opinions
- Huff v. HuffTexas Supreme Court · 1983
- Storey v. NicholsTexas Supreme Court · 1858
- Johnson v. ColeCourt of Appeals of Texas · 1940
- Simpson v. WatsonMissouri Court of Appeals · 1884
- Talbert v. BarbourCourt of Appeals of Texas · 1897
8 more not listed; retrieve them via the Exa API.