
    Waller v. Huff, Adm’r.
    
      Quere? Whether an act-ion of scire facias to revivo a judgment of the District Court can be instituted in the county where the judgment remains of record, whore the defendant rosiüas in another county.
    A judgment on a scire facias to revive, that the judgment be revived, and that the plaintiff do recover the amount, for which let execution issue, is substantially correct; or if erroneous, can bo corrected by rendering sueh judgment as should have been rendered.
    Whoro judgment is rendered with a stay of execution until the happening of a certain event, ásciro facias to revive and obtain execution cannot be maintained without alleging that the event has happened, or somo other fact which avoids the necessity of its happening, and proving tile same. And where the judgment went by default, the want of such allegation and proof was held to be fatal on error.
    Error from Brazoria. The petition was filed by George Huff, administrator of Samuel Sawyer, deceased, representing that oil the 4th day of April, 1838, abridgment was rendered by tbo District Court of Brazoria county in •favor of petitioner, as administrator aforesaid, against Edwin Waller; that, no execution bad issued on said judgment, and tliat the same was still in force and unsatisfied, and that “the said Waller resides in the county of Austin.”
    The petition prayed tliat a wfit of scire facias might issue to said county of Austin, requiring Waller to show cause why judgment should not he revived and execnl ion he issued thereon. A copy of the judgment was annexed to the petition, and was as follows :
    “ George Huff 1 “In this case the parties, by their counsel, came into court, v. >■ “ waived the right of trial by jury, submitted the same to the “Edwin Waller. J “ court, .and the plaintiff having established his demand, it “is ordered, adjudged, and decreed that the plaintiff recover of the defeud- “ ant the sum of thirty-five hundred dollars, with interest at five per cent, per “annum from the 11th day of January, 183.1, subject (o a credit of seventeen “hundred arid fifty dollars paid on the 23d April, 1S35, and defendant, is allowed interest on that amount at the said rates, and execution is stayed “until tbo curator, Huff, settle the succession of S. Sawyer."’
    Tlie defendant did not appear, and judgment was rendered (hat the plaintiff recover of the defendant the sum o'f one thousand seven hundred and ninety 58-100 dollars, with interest thereon from the 23d April, 1835, at the rate of five per cent, per annum, and that execution issue for the same. The defendant sued out a writ of error, and assigned the following as grounds for reversal, viz:
    1st. That the defendant was illegally sued in Brazoria county, the pel ilion showing tliat Waller resided in the county of Austin, and no cause is shown why suit was authorized to be brought out of the county of his residence.
    2d. The judgment is against (he law and the evidence.
    3(1. The judgment was by default and the damages were incorrectly assessed, as appears by the record.
    4th. The judgment does not correspond with nor does it follow (he terras and conditions of the original judgment upon which the suit was brought.
    
      J3. M. Pease., for plaintiff in error.
    I. In relation to the first error assigned : Tlie petition alleges that Waller, the defendant, is a resident of Austin county. The suit was commenced in Brazoria county, on the 24th January, 1846, and it is contended that under the law then in force lie could not have been sued in this ease, except in the county of his residence. (See acts of 1st Congress, page 200, sec. 5.)
    II. In relation to the second error assigued : It is contended by the appellant that the judgment rendered in this case is not such a judgment as tlie law authorized. (Hart. Dig., art. 1623; 2 Tidd. Prac., 1139, 1152, 1153; Appendix Tidd. Prac., cli. 42, sec. 74, ch. 41, sec. 20; 5 B. Honr. 172; 1 Ilarringt. R., 94; 7 Cow. E„ 540.
    III. It is also contended that this judgment is against the evidence.
    The record shows tliat tiiis judgment was rendered by default, and that there was no evidence before the court but the original judgment. A copy of this judgment is made a part of (he petition for the scire facias. It will be seen that it was a part of the judgment “ that execution was stayed until the “curator, Huff, settles (lie succession of S. Sawyer.” This part of tlie judgment was part of the evidence before the court, and showed that the plaintiff was not entitled (o execution “ until the curator, Huff, settled the succession “of S. Sawyer.” There was no evidence before the court that tho.sn'ecession of S. Sawyer had heen settled hy tlie curator, Huff; indeed, no such evidence could properly have heen admitted, for there is no allegation in the politiou that said succession had been settled by said Huff, under which the evidence could have heen admitted. The fact that the original judgment contained the above-named stay of execution was disclosed by the pleadings of the plaintiff, for the copy of (lie original judgment, attached to the petition, must he considered a part of the allegations and pleadings of the plaintiff. ,
    “A judgment taken by default does not dispense with the rule which requires “that the proof shall conform to tlie allegations, and that the latter must he “sufficient to constitute a legal basis on whichPto predicate the judgment.” (3 Tex. It., 303.)
    Taking the copy of the judgment as a part of the petition, it is respectfully submitted to the court that a general demurrer to the petition would have been sustained, and this is sufficient to reverse the judgment.
    The third and fourth errors assigned may be considered as embraced in the second.
    
      J. B. Jones, for defendant in error.
    I. Proceedings to revive a judgment do not constitute a new suit, but are a continuation of a former suit. (McGill v. Perrigo et al., 9 Johns. B., 259; Wolf v. Pounsford, Ohio B. Cond., 841.)
    The proceedings were therefore properly instituted in Brazoria county, where tlie original judgment was rendered. Blit even if we should bo mistaken on this point, yet we say the right to be sued in tlie county of his residence was a personal privilege of the defendant, which lie waived by his default. He should have taken advantage of this defense in tlie court below.
    II. Tlie judgment, we insist, is substantially correct. It refers to the former judgment, and, in effect, revives it and orders execution to issue. If all entries made by tlie clerks of our District Courts were required to be in strict technical form, as required by tlie common-law practice, few judgments would be sustained. It is sufficient that the judgment is in substance and effect correct. At most, this court would but render such judgment as the court below ought to have rendered.
    III. Tlie slay of execution, given by the original judgment, requires an impossibility. It creates two perpetuities.. The condition, being impossible and eutirely repugnant to the judgment, is void.
   Hemphill, Ci-i. J.

As some difference of opinion might exist in relation to the first ground, its examination will be waived. The other three grounds of error have been consolidated and considered together in the argument of the appellant, and we will pursue tlie same order in their discussion. It is insisted that tlie judgment is not such as is authorized by law; that the form of a judgment oii a scire facias to revive a judgment where execution has not issued is, that Hie plaintiff have execution for tlie original judgment; and that this form has not been pursued. It appears from tlie record that two attempts were made to enter tlie judgment in legal and technical form. In the latter it is ordered that tlie judgment be revived, and the clerk having assessed tiie damage, it was ordered that the plaintiff do recover of the defendant a certain sum, with interest from tlie 23d April, 1835. This sum, if the interest from Jauuary to April be correctly estimated, (and I shall not stay to examine whether it be so or not,) is equivalent to the amount recovered in the original judgment, and it orders execution to issue. Thus far the judgment, though not'in due form, is substantially correct, and the error, if any, is one which might be cured by pronouncing such judgment here as should have been rendered below.

But a fatal objection to the judgment and to the action is, that the original judgment is encumbered with a condition which is not attached to the judgment as revived under this proceeding. By the, original judgment, execution is stayed until the curator, Huff, settle with tlie succession of S. Sawyer. How, the object of a scire facias is to obtain execution where it has not been issued. But how can tlifc pinintiff succeed in having execution in this case when, by agreement, it is to be delayed until the performance of a precedent condition? He certainly cannot succeed, unless he can show that it has been performed, or that it was fraudulently obtained, or that for some reasou, valid in law, it is no longer binding on the parties. They doubtless understood what was meant and intended by the agreement. That its object was to beneiit the defendant is certain, and of this he cannot be deprived, unless on good cause shown to the contrary. But there is no allegation in the petition which would let in any proof touching this condition or its performance or want of force and efficacy. There is no evidence but the copy of the judgment itself, and this shows that execution was suspended by consent of the parties. This suspension still continues, for there is no showing and can be none on the pleadings to the contrary. The judgment, which the plaintiff produces to show that lie is entitled to execution, proves, by its own terms, quite the reverse. If the judgment be revived at all, it must be with all its terms, conditions, and contingencies, unless it be alleged and shown to be now disencumbered. As it stands, the original judgment is ordered to be revived and execution issue, without any respect to that portion of the judgment which stayed execution or any showing why it should be disregarded.

The defendant in error contends that the condition is an impossibility, repugnant to the judgment, and therefore void. The condition may be impossible; hut this is not apparent from anything contained in the recoril. All that can he gleaned from the judgment is that execution is not to issue until a curator, who is named, settles a certain succession. To settle an estate is not in itself an impossibility; and there is nothing to show that the suspension of this execution obstructs or prevents such settlement, or in fact that the estate has any or what interest in the judgment.

But the discussion of the points raised in the assignments need not he further prolonged. The judgment is encumbered with a condition. If revived at all it must he cum onere, or it must he alleged and shown that the ground for the suspension of execution no longer continues. Judgment reversed and cause remanded.

Reversed and remanded.  