| Ala. | Jan 15, 1835
This case originated before a justice of the peace, and was a warrant to recover the amount of a judgment, which had previously been rendered by a justice of the peace, in favor of the plaintiff in error, against the defendant. It was brought into the Circuit Court, by appeal, where a statement of the cause of action was made, representing as the ground of claim, a judgment rendered for the plaintiff, on the 12th January, 1828, against the defendant, for the sum of thirty eight dollars and seventy seven cents, which is alleged to be in full force: to which statement there was a demurrer by defendant, and a judgment had thereon against the plaintiff below, who is also the plaintiff in this court. The error assigned is for this judgment on demurrer, and the only question presented is, whether an action lies to recover the amount of a judgment of a justice of the peace.
I have no doubt, that after a year and a day from the rendering of such judgment, an action will lie for it, if within that time, no execution had issued upon the same. This is the doctrine of the common law, as applicable to all judgments. No execution can issue after such lapse of time : but the party must pursue his remedy, by action on the judgment. The scire facias, quare executio non, was provided by statute in England, of 13th Edward I. Our statute affording this suit, applies expressly to courts of record. Now, if an execution were to issue, after the time aforesaid, no doubt a supersedeas would quash it. *
We have seen, that that there is no warrant for a sci. fa.; and we have a statute preventing a prosecution of the same cause of action by a secopd warrant therefor.
The objection was taken to this statement, that it did ot contain the negative allegation — that no timely execut >n had issued on the judgment. Our construction of the t i-tutc regulating the trial of cases, brought into the circuit or' county courts, by appeal, or certiorari, from a justice of íe peace, has been such, as to allowgreat generality in the pic ding«. An issue is required to be made up, at the trial, wl re the sura exceeds twenty dollars ; and the cause is to be t ed according to the equity and justice of the case. We h ve never required any very critical accuracy in the stateme t; any thing proposing an issue, under which the merits of t e controversy can be settled, will suffice. Here, the statemei 1 shows, that the judgment sued on, was rendered four years at least, anterior to the time of making said statement. We will not presume against the plaintiff, that an execution had issued; nor will we require, that the statement should contain the averment, that none had issued within a year and a day after the rendering of the judgment. Under that statement, as made, an issue might Well have been taken, which would have admitted proof of that fact ; and if it appeared that an execution was still available to the plaintiff upon the judgment, the justice and equity of the case would demand, that the issue should be found against him.
There was error in sustaining the demurrer.
Let the judgment be reversed, and the cause remanded, for -■trial upon an issue, as lhe statute provides.
Aik. D. 294, s. 14.