delivered the opinion of the court upon the petition for rehearing:
A careful reading of the preceding opinion will discover that the case was disposed of not on the ground of the insufficiency of the allegations as to the return of the executions, but on account of absence of an allegation of ownership by the complainant of the judgments. What we have, said, however, upon the former point it may not be useless for the complainant’s counsel, in view of the authorities cited, to consider. There is nothing in Robinson et al. vs. The Springfield Company, 21 Fla., inconsistent with either those authorities, or what we have said. Section 424 of Freeman on Executions, does treat of the judgment, and not the execution, as the claim of which satisfaction is to be sought in equity, and so does section 425, and such was our view in citing the former section.
We are-still satisfied that a bill, in a case like the present, brought by one not a party to the judgment, must allege the complainant’s ownership of the judgment in a *553proper manner, and that an allegation of ownership of an execution issued thereon and returned unsatisfied is not sufficient. Such is the conclusion upon which the case was disposed of. We are dealing with a question of pleading, and the rule is that a pleading is to be construed most strongly against the pleader.; and however unreasonable it may be “ to suppose title m an execution in one, and in the judgment which supports the execution in another,” we do not think the rule of pleading referred to permits us to indulge in suppositions to support a pleader’s case, and to suppose an allegation of ownership of an execution by assignment, and that such execution has been returned by the sheriff unsatisfied to be an allegation of ownership by assignment of an existing judgment. Suppositions in pleading are against the pleader, not in his favor. We do not deny that it is not necessary there should be written evidence of the assignment of judgment as laid down in sec. 422, of Freeman on Judgments, cited by appellant’s counsel, nor that it has been held in Iowa, that “ where E. recovered judgment for possession in an action for the recovery of real property against P., and afterwards sold the property to W., without assigning the judgment on the record, the grantee of the judgment plaintiff by the purchase of the property became the real party in interest and could properly revive the judgment by scire facias.” We do not deny that the judgment “ gives the execution vitality;” and if we admit that this is its “ only ” effect, we do not know but the inference is still clear that where there is no execution in fact outstanding, (it having been returned and become functus officio,) there is nothing in so far as such particular execution is concerned to be vitalized, and that an allegation as to that which is in fact functus officio, is not an allegation as to that which gave it vitality while it was a living thing. In Indiana an order on the clerk of a *554court to pay over to “ A.” the amount of a judgment held by the drawer, was held by the Supreme Court not to be an assignment even in equity. In section 423, or Freeman on Judgments, after mentioning this case, it is remarked: “ Therefore, it cannot be presumed an assignment is intended.” The petition for a re-hearing refers to this section.
Sections 4 and 5, of chapter 102, McC.’s Digest, referred to by appellant, do not change the rule as to what is necessary, so far as the return of the execution is concerned, to give equitable jurisdiction in eases of this character. There is nothing in either section which prevents the return of an execution before it is satisfied. Section 5, on the contrary, provides for a renewal of the writ “ upon the return to the clerk’s office of the original execution from time to time for twenty years unless the same be sooner satisfied.” Such renewal is by issue of alias and pluries executions.
It is urged that the court “ misunderstands ” the facts of the case ; and in support of the contention, allusion is made to an action at law which was pending at the time the bill in equity was Med, and in which action a judgment has been subsequently rendered, and the recovery of which has been alleged in the bill by an amendment. It is contended that there is practically an allegation of absolute ownership of this judgment. If a judgment recovered subsequent to the filing of a bill of this character is sufficient to maintain the equitable jurisdiction, what becomes of the rule that before such equitable jurisdiction can be resorted to there must have been a judgment, an execution and the return of nulla bona ? Bills of this character cannot be supported by a judgment recorded subsequently to their being filed. If they could, it would only be necessary to allege a hope or expectation of such recovery. We did not misunderstand the facts as to this proceeding at law.
Upon no principle of pleading are we able to hold that *555there is any allegation of ownership of the judgments recovered before the filing of the bill. We are not dealing with a question of evidence or ownership, but one of pleading.
It is complained that the point upon which we have disposed of this case was not made in the argument. It is well settled that where the bill or declaration fails to show a cause of action the appellate court will notice the defect although no notice he taken of it in the petition of appeal or assignment of errors. Pittman’s Adm’r. vs. Myrick,. 16 Fla., 692 ; Proctor vs. Hart, 5 Fla., 465.
The rehearing is denied.