
    Bullock v. Ballew.
    Where execution has not issued on a j udgment within the year a scire facias or action of debt maybe brought to revive tho judgment. In tlie action of debt the judgment" for the plaintiff is that lie recover his debt, &c.; whereas in a scire facias it is simply that he have execution.
    It is a maxim in the law that there can bo no averment in pleading against the validity of a record, though there may be against its operation; therefore no matter of defense can be pleaded which existed anterior to tlie recovery of the judgment.
    In an action on a judgment of a court of this Stale, whether by scire facias or debt, to revive it, it is not necessary for the plaintiff to bring before the court the proceedings in tho suit anterior to the entry of filial judgment. (Noto 86.)
    But if a judgment be void the defendant may plead the matters which show its nullity, and-for that, purpose he may bring before the court the proceedings anterior to its rendition. (Note 87.)
    There was judgment for the plaintiff and a motion for a new trial, which was continued from term to term, and a motion was made by the plaintiff’s attorney to substitute papers for others which had been destroyed by fire; in tile meantimo the plaintiff brought a separate action of debt to revive tho former judgment, and tho case being submitted to the court upon tlie entry of judgment, motion for now trial, and subsequent orders for continuances, judgment was rendm-ed for the defendant: Held, That tlie judgment should have been in favor of the plaintiff, because the motion for a new trial became void upon-the adjournment of the court.
    Appeal from Grimes. This was an action brought in September, 1851, upon 'a judgment recovered by the plaintiff against the defendant in the District Court of Grimes county, at the' Pall Term, 184S. The plaintiff set out the judgment and averred that it was in force, not reversed, satisfied, or otherwise vacated, and that he had not obtained execution thereupon.
    Note 86. — Hopkins v. Howard, 12 1\, 7.
    Note 87. — Taylor v, Harris, 21 T., 438.
    The defendant excepted to the petition and answered, denying that there was an}'' sufficient and legal record of the proceedings had against him, or of ■any legal j udgment; and that the pretended j udgment was irregular and defective, &c.
    The plaintiff thereupon amended, alleging that all the papers and proceedings in the cause, antecedent to the judgment, had been destroyed by fire.
    The plaintiff gave in evidence the record of the judgment entered in the minutes of the court, which recited that the cause came on to be heard, and that the defendant having filed his answer, thereupon eame a jury, &c., and concluded with tlie verdict and judgment thereon for the plaintiff’, regularly entered in proper form. The plaintiff further gave in evidence, from the minutes of the court, the entry of a motion for a new trial, which was continued until the next term ; and also an entry, at a subsequent term of the court, of a motion to substitute papers for those destroyed, which was refused. The entries in evidence showed a continuance of the motion for a. new tpial from term to term. Upon this evidence the court gave judgment for the defendant, a jury being waived. The plaintiff appealed.
    
      W. JET. Neblett and Q. A. Jones, for appellant.
   Wheeler, J.

The second section of the act of limitations (Hart. Dig., art. 2378) expressly recognizes the right to revive a judgment b y scire facias, or an ■action of debt, where execution has not issued within twelve months from the rendition of judgment. The present is substantially an aetipn of debt, brought ■on the judgment, in the language of the statute, “to revive” it. In effect", it is not materially different from'a scire facias brought to revive a judgment. In an action of debt the judgment for the plaintiff is, that he recover his debt, &c. In a scire facias, it is simply that he have execution.

In an action on a judgment no defense can be admitted which existed prior to the judgment. It is a maxim in the law that there can be no averment in pleading against the validity of a record, though there may be against its ■operation; therefore no matter of defense can be pleaded which existed anterior to the recovery of the judgment. (1 Chit. Pl., 521; 5 Serg. & R., 65; 8 Johns. R., 77; 12 Mass. R., 268; 13 Id., 443.) In an action on a judgment, therefore, whether by scire facias or debt to revive it, it is not necessary for the plaintiff to bring before the court the proceedings in the suit. (2 Bibb R., 331; McFadden v. Lockhart, 7 Tex. R., 573.) Although the judgment may be erroneous, debt lies until it lias been reversed. (1 Chitt. Pl., 126 ) But if the judgment be void the defendant may plead the matters which show its nullity, and for that purpose he may bring before the court the proceedings anterior to its rendition. (Griswold v. Stewart, 4 Cow., 457; McFadden v. Lockhart, 7 Tex. R., 573.)

The judgment, given in evidence, appears to have been regular and legal. The defendant having answered, the parties were at issue, and had submitted the matters in controversy for adjudication. The subject-matter appeal’s to have been within the jurisdiction of the court, and judgment final to have, been a’endcred upon the merits. The judgment was not'suspended bj' the continuance of the motion for a new trial, for the reason that the court had no authority to continue the motion. (Hart. Dig., art. 7GC.) The order for that purpose was against law and void. The motion was, by operation of law, discharged upon the adjournment of the court. (McKeen v. Ziller, ante, 58.)

We are of opinion that, upon the evidence, the plaintiff was entitled to judgment, and, consequently, that the judgment for the defendant is erroneous and must be reversed, and such judgment be here rendered as the court below ought to have rendered.

Reversed and reformed.  