Warren County MsArchives Court.....Hicks, Ann June 1818
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Deb Haines ddhaines@gmail.com December 7, 2005, 6:15 pm

Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818
Written: June 1818

ANN HICKS' ADM'X OF P. C. HICKS vs. MURPHY FOR MOORE


An execution, issued against an administrator, without revival by scire 
facias, and after the lapse of a year and a day from the rendition of the 
judgment against the intestate, in his life time, is irregular.

Such irregularity cannot be taken advantage of by a writ of error, that writ 
lying only to correct the errors of the judgment of the inferior court, and 
not the irregularities of the clerk or other officers.

The proper method to correct such irregularity is by motion to the court 
below, or by writ of audita querela.

The only cases in which a writ of error will lie to correct an irregularity in 
issuing an execution, is where it is awarded by the order of the court below.


OPINION OF THE COURT.

This is a writ of error, to Warren Superior Court. The errors assigned are, 
1st. that judgment was rendered against P. C. Hicks in his life time, and 
after his death, execution issued against his administrator, without any 
revival by scire facias. 2nd. That the execution issued more than a year and a 
day after the rendition of the judgment.

There can be no doubt but that the execution issued wrongfully, the enquiry, 
however, is, can this be taken advantage of by writ of error or is not the 
court from which the execution issued the appropriate tribunal to correct the 
error. The present writ only lies to correct the errors of a judgment of some 
inferior court, not the irregularities of the clerk or other officers. This is 
the peculiar province of the inferior court itself. It has even been doubted, 
where a motion has been made to the court below to quash an execution for 
irregularity, and the motion has beea refused, and a bill of executions taken 
to the opinion of the court, whether a writ of error lies. On that question, 
the judges of the Supreme Court of the United States, were divided in opinion 
in the case of Mountz and others vs. Hodgson and Thompson—4 Cranch 324. But 
when there has been no adjudication whatever by the court below, as to the 
irregularity of the execution, there can be no doubt, but that it then cannot 
be taken advantage of on error. It has been so determined in a case in 3d 
Johns 140, 141, and also in Johnson vs. Harvey—4 Mass. Rep. 5.

The only cases in which a writ of error will lie to correct an irregularity in 
issuing an execution, are where the writ is awarded by the judgment of the 
court, as on a scire facias to revive against executors or administrators, 
against bail, or after a year and a day has elapsed, and the like cases. But 
when the execution is improperly issued by the act of clerk, without the award 
of the court, it can then only be corrected, on motion to the court out of 
which the execution issues, or by writ or audita querela. Let the judgment be 
affirmed.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834; pages 66-67.

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