Scott v. Lyons, Solomon & Co.
59 Tex. 593
Tex.
1883
Check Treatment
Watts, J. Com. App. —

After the death of the sole plaintiff an execution could issue on the judgment in behalf of his administrator only upon his complying with the statute. It is the settled law of' this state that the filing with the clerk of the affidavit of the death of the plaintiff, and the certificate of the appointment of an administrator, are conditions precedent.to the authority of the clerk to issue an execution upon the judgment in the name of the administrator. Holman v. Ohevaillier, 14 Tex., 338; Fowler v. Burdett, 20 Tex., 34. And, as there are conditions precedent to authorize the clerk to issue the execution, if the statute is not complied with in this respect, the clerk would have no authority for issuing the writ,, and it would be held invalid. That, however, is not the question presented in this case. Here the attack upon the writ is made in a. collateral proceeding, and by a stranger to that suit. And the point made is that the execution is void, not because the required affidavit’, and certificate were not filed with the clerk, but for the reason that.the writ does not state the fact that such affidavit and certificate' were on file. The execution states that the plaintiff was dead, and that the appellant Scott had been appointed administrator of his estate. It does not appear from the writ or otherwise in what manner or by what means these facts were made known to the clerk. There-is but one mode by which these facts can be ascertained by the clerk, that would authorize him to act upon them in issuing the writ, and that is in the manner prescribed by the statute. While the fact of filing of the affidavit and certificate are made essential to the exercise of the authority by him, still there is no statutory requirement that he-shall state this fact in the writ. If, as a matter of fact, the provisions of the statute in this respect were not complied with, the writ would be invalid, and the appellant could secure no right under it;, but that would constitute defensive matter, the establishment of *595which would devolve upon the appellee. The statement in the writ-of the facts required to be shown by the affidavit and certificate was sufficient, and especially when the question is presented as in this case. The presumption that the clerk acted in accordance with, rather than without, the statute, will be indulged when there is nothing in the record to repel that presumption.

In Bryant v. Johnson, 24 Me., 307, it was held that where the law required an order of court for the issuance of a second execution, the fact that the writ was signed by the clerk, and tested by the seal of the court, was sufficient; Chief Justice Whitman remarking: “ When an execution's issued under the seal of the court, the presumption is that it was issued by order of the court.”

We conclude that the court erred in excluding the certified copy of the execution as evidence, and that the judgment ought to be reversed and the cause remanded.

Reversed and remanded,

[Opinion approved June 8, 1883.]