Smith v. Eubanks

43 So. 81 | Miss. | 1906

Mayes, J.,

delivered the opinion of the court.

The record in this case shows that on the 2nd day of November, 1897, G-. W. Smith recovered a judgment against Eubanks before the mayor of Kosciusko, an ex officio justice of the peace in district number one of Attala county. The judgment was for the sum of $57.63, with costs, and ten per cent interest per annum from date. This judgment was never satisfied'. Some time afterward Gr. W. Smith died, and Mrs. Smith was appointed his administratrix on the 3rd day of December, 1903. On the 4th day of November, 1904, the administratrix brought suit on this judgment in the mayor’s court of Kosciusko in district number one of Attala county; that is to say, she brought suit in the justice’s court of the district in which the original judgment was rendered.

The suit instituted by the administratrix, as shown by the record, is an original action of debt on the judgment formerly rendered for $57.63, wherein she demands judgment against ■Eubanks for said sum and costs, together with ten per cent interest per annum from the 2nd day of November, 1897, until paid. The action is not one to revive the former judgment by a scire facias, but is a new action on the judgment formerly rendered. At the time Mrs. Smith, as administratrix, instituted her suit the agreed facts show that Eubanks was a resident in district number one of Leake county. It is also agreed in the record that the debt was contracted in the county and the district wherein the suit is brought and the judgment was formerly rendered. In other words, Mrs. Smith, as administratrix, undertakes to bring this suit in the justice’s district of Attala county, where the judgment was first rendered and the debt contracted, though at the time she instituted number one.

The question in the case is, can the administratrix bring the suit in the district of Attala county wherein the debt was contracted and the former judgment rendered, or should she have this suit Eubanks lived in Leake county, in justice district brought it in the justice’s district of Leake county, where the defendant now resides ? It would seem that' the mere stating of this proposition would carry with it the answer. The suit, being an original suit on the judgment, is only maintainable in the county and justice’s district of the residence of' the defendant. As this is not a proceeding by a scire facias, we express no opinion as to whether a judgment may be revived in the court of its rendition by a scire facias, when the defendant has moved from the county and district* of the rendition of the judgment into another county at the time the revival is sought. Counsel for appellant contend in their argument that this suit is a suit to revive the judgment, but the record does not support this 'contention.

Let the case he affirmed.