The petition in this case recites that Sarah J. Hurt in her lifetime, on the 9th of May, 1901, recovered a judgment against the city of Anniston, for the sum of $600.00 as damages for personal injuries received by her by reason of the negligence of the agents of the city, besides for $150.25 costs of suit. No appeal was taken from said judgment, and it stands unreversed and of force. Executions in her favor duly issued on said judgment and were returned unsatisfied.
It is shown, that on the 12th of July, 1902, the said Sarah J. Hurt filed in the circuit court of Calhoun county a petition for a mandamus against said city, for the purpose of enforcing the payment of said judgment with interest and costs; that on the 15th of July, 1902, a rule nisi was issued by the judge of said court, to the mayor and city council of said city, returnable to the next term thereof; that on the 4th of October, 1902, the said Sarah J. Hurt died intestate, and on the 25th of that month, the petitioner, J. W. Hurt, was duly appointed as her administrator, and at a subsequent term of said court, he moved that said proceeding for mandamus be revived in his name as administrator, which order was on the 9th of May, 1903, refused, “on the ground, that the right of action abated with the death of said Sarah J. Hurt.”
Before the present petition was filed, and on the 23rd of April, 1903, it appears that the petitioner appeared *399before the mayor and city council of said city, duly assembled, and called their attention to said judgment and requested them to pay the same, but they failed and refused, and continue to refuse to comply with that request ; and it is averred and admitted, that said city has no property subject to levy and sale under execution, out of which said judgment,can be collected.
The petition alleges, that at the first regular meeting of the mayor and city council of said city, in July, 1902, they agreed on a budget of the probable receipts and expenditures for the ensuing year, to run from July 1st, to June 80th, 1903; that the estimated revenues, specifying the sources of revenue in each instance, were $60,-920.00, and the estimated expenditures for governmental purposes, specifying the items of expense in each instance, were $60,910.00. The charter of the city (Acts, 1894-95, § 5, p. 1038), requires this budget of estimated receipts and expenditures to be in the itemized form followed in this instance. Among the items of estimated expenditures, is found the one designated as, “Interest on Bonds, etc.,acct. $7,600.00.” It is also provided in said charter, and so alleged in the petition, that the mayor and city council are prohibited from creating any liability on the city in excess of the receipts of the year. It is further averred, that the revenues of said city for said fiscal year, were not overestimated in said budget; that the estimated sum of $7,600.00, to pay interest on bonds and accounts as set forth in said budget was, and is not a necessary current expense of administering the municipal government of said city, and the mayor and city council had no right to appropriate any part of the expected revenues of said city to the payment of interest (on bonds and accounts) so as to defeat the owner of said judgment in his efforts to collect the same; that there will be a surplus of the revenues of said city for the fiscal year ending the 30th of June, 1903, after paying the necessary current expenses of said municipal government for said year, of more than enough to pay and satisfy said judgment with interest and costs.
The defendant demurred to and moved to quash the petition, and the motion and demurrer were overruled. *400The defendant answered, substantially admitting the statement of facts set up in the petition.
A preliminary writ of mandamus was issued according to the prayer of the petition, to the mayor and councilmen of said city by name, as mayor and councilmen “commanding and requiring them, instanter, to set aside a sufficient amount of the surplus revenue of the city of Anniston for the fiscal year ending June 30th, 1903, to pay and satisfy the judgment rendered by said city court, on the 9th of May, 1901, in favor of Sarah J. Hurt, and against the city of Anniston, for $600.00, together with the Interest now due on said judgment, and the costs of said suit, and order the same paid as of the time of the collection of said revenues; and said mayor and city council are hereby prohibited and restrained from paying out any of the revenues of said city for said fiscal year on interest on bonds and accounts until said judgment with interest due thereon, and costs are fully paid.” The appeal is to reverse this judgment of the court.
1. The insistance of the petitioner is, that the expenditure of the item for interest on bonds and accounts, is not for a legitimate municipal purpose, and the money appropriated or appointed for that purpose in the budget of expenditures, constitutes, if collected, or will constitute, when collected, funds in the hands of the respondents in excess of the necessary expenses of administering the municipal government, and should be applied to the payment of his judgment. The charter, as we have said, requires of the city council before the 1st day of July in each year, to agree upon a budget of expenses for governmental purposes- for the year ending the 30th of the following June, and the expenses to be itemized, such as salaries, streets, fire department, lights, schools, water, police, etc., the object of corporation expenditures, — and the estimated amount run out in figures for each. We have found, neither in the charter, nor in any other statute, any legislative authority to make the interest on municipal “bonds and accounts,” an item of expenditure for administration of governmental purposes. The council, therefore, had no right *401to estimate this interest as a governmental expense, and by way of anticipation in their budget of expenses, to appropriate the amount to the payment of interest on municipal bonds and accounts, so as to defeat the plaintiff or other creditors in their efforts to subject this excess over necessary current expenditures, to the satisfaction of their demands. The bond and holders of accounts against the city had no lien upon the revenues of the city, nor any claim thereon, superior to the judgment of the plaintiff, or the claims of any other creditor.
If the petitioner’s judgment was a valid debt against the municipality, the writ of mandamus he seeks is in the nature of an execution, and should be given operation upon any surplus revenue, in the same way that an execution should be given precedence or priority over the claims of simple contract creditors. Without the writ of mandamus, the fund could not be reached at all, as it is beyond the reach of an ordinary execution.—White v. Mayor and Council, 119 Ala. 476.
2. It is objected, again, that the cause of action on which the judgment in this case was founded, was .in tort; that such a cause of action does not survive, but dies with the injured person. This is undoubtedly true, when the injured party dies before judgment recovered in his favor for the injury sustained. But the rule does not apply, when the action has been prosecuted to final judgment in favor of the injured party. It then becomes a- debt owing by the party inflicting the injury to the party injured. Upon this subject, Mr. Freeman says.: “Every judgment is for most purposes to be regarded as a new debt; the chief, and perhaps the only exception being in cases when the tech-nicfil operation of the doctrine of merger would produce manifest hardship, and even those cases are by no means universally excepted. This new debt is not, in general, affected by the character of the old one. Though the cause of action may have arisen from a tort, the judgment, therefore, is not any the less a contract or in the nature of a contract. The tort merges in the judgment. Hence, it may be the foundation of an action of debt, or of a set-off, under a statute permitting matters ex con-*402traotu to be set-off. Neither is it infected by the -usurious nature of the cause of action.” — 1 Freeman on Judgments, § 217; 1 Cyc. 79, and authorities there cited.
As to whether judgments are contracts, — as to which there is a diversity of view, — we need not now consider. It has been held on high authority, that a judgment in an action for a tort is not a contract within the meaning of that provision of the Federal Constitution, which forbids the states to pass any law impairing the obligation of contracts, and there are potent reasons for this view. 1 Black on Judgments, § 9. But that question is of no importance here. The judgment of plaintiff’s intestate, is a debt owing by the city, on which execution may issue for its collection in favor of her administrator, in the manner prescribed by statute, and this debt for the purposes in hand is not affected by the character of the cause of action on which it was founded.
The correctness of the judgment of the lower court is not questioned except in the manner referred to by us, and finding no error therein, it is affirmed. •
Affirmed.