¶1— Scire facias by Jones and another against Bennett to have execution, in the Circuit Court, against real estate on a justice’s transcript.
¶2The writ alleges the recovery of a judgment by the plaintiffs against the defendant before a justice of the peace for a certain sum, the issuing of a fieri facias on the judgment, and the return of the execution nulla bona. It states, also, that the justice afterwards filed, in the Circuit Court, a certified transcript of the judgment and proceedings, and that the transcript was recorded and filed in that Court.
¶3Pleas in bar as follows : 1. No such judgment as alleged ; 2. No notice of the suit before the justice ; 3. The transcript was not filed and recorded in the Circuit Court; 4. No such transcript as alleged remains of record in the Circuit Court; 5. No execution was issued on the judgment; 6. No return of nulla bona to the execution ; 7. The defendant had goods sufficient to satisfy the execution.
¶4The third, fourth, and seventh pleas were demurred to, and the demurrers sustained. To the other pleas, replications were filed in affirmance of the allegations denied by those pleas. The cause was submitted to the Court, and judgment rendered for the plaintiffs.
¶5We think the third plea is bad. The execution having been issued by the justice, and returned nulla bona, before the filing of the transcript, as shown by the scire facias, it was not necessary to have the transcript recorded. R. S. 1838, p. 375. Hamilton v. Matlock, 5 Blackf. 421. The averment in the scire facias, therefore, that the transcript had been recorded, was an immaterial averment, and the plea should not have noticed it. The traverse of the averment that the transcript had been filed and recorded is too large ; it should have been only of so much of the averment as states that the transcript had been filed.
¶6The fourth plea is in denial of an immaterial averment, and the demurrer to it was correctly sustained.
¶7The seventh plea is also bad. We have heretofore held that, in a suit like this, the truth of the constable’s return cannot be denied. Hamilton v. Matlock, Supra.
¶8The judgment on the merits is objected to on the ground that the justice’s judgment was by default, and that there is no sufficient evidence that the defendant had notice of the suit. The answer to this objection is, that the transcript of the justice given in evidence expressly states, that the writ was returned by the constable as served on the defendant. That statement must be considered, at all events, prima facie evidence of the due service of the writ.
¶9— The judgment is affirmed, with 5 per cent. damages and costs.