HANSON vs. JACKS et ux., 22 Ala. 549

LIGON, J. A writ of scire facias to revive a judgment at law, on which execution has not issued in a year and a day, may be regarded as a suit upon the judgment; and so far as the plaintiff’s right to discontinue as to parties not served, is concerned, the rule would be the same in both cases. Toulmin v. Bennett, 3 S. & P. 220; Sartin & Rodgers v. Weir &c., ib. 421.

It is true, the scire facias, in the latter case cited, in which a discontinuance was held regular, was issued on a replevy bond, and not on a judgment; but we apprehend this can make no difference, as the right to discontinue in any case, after the issue and return of process into court, depends upon the statute, (Clay’s Dig. 323 § 62,) the provisions of which extend to suits on judgments which are joint, as well as to bonds, covenants, &c.

But it is insisted, that, inasmuch as the defendants in this judgment are joint executors, a different rule must govern; and that in such case, a discontinuance as to one, is a discontinuance as to both. This would be the case, if both the executors were residents of the State, and within the jurisdiction of the court; for the general rule is, that executors and administrators, where there are several who have qualified as such, constitute but one person, and must, in general, be sued in one writ.

When, however, one of them is out of the jurisdiction of the court, and not amenable to its process, he may be omitted out of the writ, or if included in that, and he is not served, a discontinuance may be entered as to him in the declaration, or on the record, and the plaintiff may proceed to judgment against the others. English & English v. Brown, 9 Ala. Rep. 504; Williams & Ivey, Ex’rs, v. Sims et al., 9 Por. 579; Owen v. Brown, 2 Ala. Rep. 127. In the case under consideration, the record shows, that, Thomas C.

Hanson was a nonresident of this State; that the scire facias, as to him, was not made known; and that the plaintiffs had caused a discontinuance to be entered of record, before they proceeded to judgment against his co-executor. There is, therefore, no error in allowing the discontinuance as to Thomas C. Hanson, and proceeding to judgment against George ~W. Hanson. The error supposed to be found in the judgment itself, because "costs are given against the defendant in the sci. fa., we do not regard as such.

Costs, in suits at law, are, by our statute, required to be given against the unsuccessful party, and we are not aware that the court has any power to dispose of them otherwise. Nor.are we apprized of any law or practice in this State, which exempts suits by scire facias from the general law regulating costs. There is no error in the record, and the judgment must be affirmed.