Fannie M. Buker vs. James Gibson Carroll and Emma J. Carroll, Defendants, and Ananias Ennis, Terre Tenant

Spruancp J:—

The objection made to this affidavit is that, except in the caption of the affidavit, it is not stated that Ananias Ennis is the terre tenant, or how he became a terre tenant.

We have given this matter careful consideration, and the majority of the Court are of the opinion that this affidavit is sufficient.

So far as my experience goes, it has never been the practice in ordinary suits on judgments or mortgages where terre tenants are made parties defendant, to make any allegations respecting them in the body of the affidavit. The names of the plaintiff and defendant and terre tenant are stated in the caption of the affidavit, and without making any allegations whatever in respect to the terre tenant the party swears, as in this action, that “ hereto annexed is a duly certified transcript of the judgment (or mortgage) sued upon in this action and that the sum demanded is justly and truly due.” We think this follows the ordinary practice and that it would be dangerous to require specific allegations as to how the terre tenant became such, etc.

This decision can do no harm as the time has not yet expired in which an affidavit of defense can be filed.

We therefore hold that the affidavit is sufficient.

” Tore, C. J.,

(dissenting):—The objection is to the sufficiency of an affidavit of demand against Ananias Ennis as a terre tenant in a scire facias for the revival of a general judgment, in what has been characterized as a snap judgment proceeding. The only place, where the name of Ennis occurs at all as a party, is in the caption. The transcript of the judgment does not show that he has any interest whatever. Neither is any interest whatever shown in the plaintiff’s affidavit of demand. He is therefore a stranger to the record, except so far as his name appears in the caption.

This is not the case of a scire facias upon a mortgage, which is a . proceeding in rent, for a judgment of condemnation of the particular piece of land described in the mortgage, which mortgage is a part of the record in the case. No analogy therefore can be drawn from such proceeding, whatever may have been the practice of making terre tenants parties thereunder.

This is a scire facias for the revival of a judgment against persons, which judgment is a general lien upon any and all property which the original defendant may have held at any time , since the original judgment was entered of record, however many pieces of such property there may have been; no piece of which is described in any manner in connection with the record. Ananias Ennis is a stranger to the judgment as shown by the transcript filed, and is not connected with the judgment in the averments of the affidavit. No judgment should go against him as a party, unless some interest is shown in him to warrant it. Such interest would have to be shown in the case, if the case were before a jury, or the Court would not permit judgment to be had against him. It is even more necessary that his relation to"” the judgment should be set out in the affidavit of demand, which affidavit must show a conclusive right on its face, or under our practice no judgment will be rendered thereon. No one in reviving a general judgment ever thought of making a terre tenant a party defendant, prior to the statute for the extension of a lien of a judgment upon lands. Theretofore the only new parties that could be made, were the personal representatives of the deceased plaintiff or defendant; and this was so because they personally represented the parties to the judgment.

The relation of this stranger to the record of the judgment, which justifies making him a party under the statute, should be disclosed in the affidavit. If this is not done the plaintiff has not made out on the face of his affidavit a sufficient case.

There is, therefore, not only a doubt of his right to recover, which is the rule for refusing judgments in such cases, but to my mind there is a manifest failure on the face of the paper to show such right.

I therefore cannot agree with the judgment of my brethren, and am clearly of opinion that the affidavit is not sufficient and the judgment should be refused.

Mr. Rodney, in the absence of Mr. Burris, asked for and obtained leave to extend the time of filing his affidavit of defense until Saturday, December nth.