Portevant v. Pendleton's Administrators

23 Miss. 25

• Court: Mississippi Supreme Court
• Decided: January 15, 1851
• Status: Published

Opinion

Per curiam.

The plaintiff in error instituted this suit against the original administrator of Pendleton. Process was served, and Prestidge the administrator appeared, but he died before trial. Administration de bonis non was granted to defendants in error, and the question is, Can a suit commenced, and pending undetermined, against the original administrator, be revived by scire facias against the administrator de bonis non?

By the common law all personal actions abated by the death of either party before judgment. 2 Tidd, 1024 ; 2 Sel-lon’s Practice, 191. The difficulties and delay produced by the operation of this rule, were remedied by the statutes of 17 Charles 2, and 8 & 9 William 3; which gave the scire facias to bring in the representatives of the plaintiff or defendant. But these statutes go no further than to authorize the bringing in the immediate representatives of the party to the suit.

The evils of the common law rule are also remedied by our statutes. In the first place, it is declared that actions commenced by or against a testator or intestate, shall survive for or against the executor or administrator, with the same effect that they might have been prosecuted by or against the testator or intestate. Hutchinson’s Code, 672. By another statute, it is also declared that pending actions shall survive, and the scire facias is given to bring in the representatives. Hutch. Code, 841, 842. And the same statute also provides that the suit shall not abate by the death of the nominal plaintiff, that real and mixed actions shall not abate by the death of either party, but that a scire facias may issue to bring in the heir or devisee; and also that an action shall not abate by the death of one plaintiff or defendant, when there are two or more. But a case like the present is not provided for, either directly or by a fair construction of the statutes. The scire facias is not a common law remedy to revive a suit, and if it can issue for that purpose, it must be by statute. Nor does a suit like the present survive by the common law. A scire facias is a common law remedy to revive a judgment, though it is not so to revive a suit pending, and this distinction is sometimes overlooked. On this principle, if an administrator or executor recover a judgment and die, the administrator de bonis non may have a scire facias to have execution of the judgment. 2 Sellon’s Practice, 192.

Note, by the Reporter. — The arguments of counsel are published at length in this case at the request of the court, because the principle decided is an important one, and there are many other cases pending in court upon the same principle.

The statute of 1846 remedies the defect in our law, by authorizing a suit commenced by or against an administrator, to be revived in case of his death in the name of the administrator de bonis non. But Prestidge had died some time before the act passed. The action abated by his death, and the legislature could hot revive a right of action which had been lost.

Judgment affirmed.