Hyde v. Leavitt

2 Tyl. 170

• Court: Supreme Court of Vermont
• Decided: August 15, 1802
• Status: Published

Opinion

Opinion of the Court.

The Chief Judge

delivered the opinion of the Court.

The Court had ever considered this section of the statute as too explicit to admit of doubt, misconstruction, or controversy. The object of the statute is to save the useless expenditure of costs. Actions might frequently be brought, be zealously litigated, and great costs accrue to the injury of a party, and the encumbrance of the Court records, which actions might abate by common law on the death of a party. If the cause of action survived, such action might be recommenced for or against the legal representatives of the deceased, but the former costs would be lost, and the former proceedings become a dead letter; to remedy which this section, embodied with the judiciary act at the revision of the statutes in 1797, but formerly in force as a section of the act “ empowering executors and administrators to prosecute and defend suits where one of the parties die pending the suit,” was enacted.

Jedediah Stark, for plaintiff. Samuel Knight and Daniel Farrand, for defendant.

It is how contended, that upon the decease of a person, all actions which have been commenced against him by the service of the writ in his life-time, though they should not be entered in Court until after his decease, are included in this 73d section of the judiciary act; and that consequently the legal representatives of the deceased may by scire facias be brought in to appear and made party to such suits.

The Court are decidedly of opinion, that neither the spirit or the.letter of the 73d section of the judiciary act reach cases where a party dies before the action is entered in Court.

*

Judgment for the defendant.

At their October sessions, A. D. 1804, the General Assembly passed an act, by the 2d section of which they enacted, “ that when any suit shall be commenced, and either of the parties shall die before the same is entered in Court, there shall be the same right for or against executors or administrators, of entering and prosecuting the same, as by law now exists for the prosecuting a suit which is pending in Court at the time of the death of either of the parties. Vermont Statutes, vol. 1. p. 104.