Shackleford v. Mississippi Central Railroad

52 Miss. 159

Opinion

Campbell, J.,

delivered the opinion of the court.

Plaintiffs (in each case) had judgment against them and ■prosecuted writ of error to this court, 'which pronounced the judgments erroneous. Whereupon counsel for plaintiffs in error moved for scire facias to bring in the New Orleans, St. Louis & Chicago Railroad Company, which, it was suggested, had been formed by consolidation of the defendant in error and •another railroad company since the rendition of the judgments in the circuit court, to receive judgment in this court on ■reversal of said judgments.

The New Orleans, St. Louis & Chicago Railroad Company-appeared to the scire facias and moved to quash it, which presents the question whether a scire facias can be issued in such, case by this court.

At common law, in case of natural persons, the death of defendant in error did not abate the writ, but the case was-proceeded with to judgment as if the death had not occurred,, and afterwards scire facias was proper to revive the judgment. 2 Tidd’s Prac., id. 1164. We have no statute extending the-writ of scire facias to such a case. Our statute for bringing' in parties to pending suits relates to natural persons only. Torry v. Robertson, 24 Miss., 192. Therefore the scire facias-does not lie in this case.

Plaintiffs have the right to treat the Mississippi Central Railroad Company as continuing its separate existence for the prosecution of their actions against it. It was not competent, for the legislature to authorize and the corporation to so act-under such authorization as to defeat or prejudice 'the rights of plaintiffs in pending suits against it. As to such the corporation exists for the purpose of judgment; for as to them it has not lost its individuality or identity. No act of a defendant can defeat the right of plaintiff. At common law a feme sole-defendant marrying after suit brought, though she lost her identity, changed her name, and merged her separate existence' in that of her husband, did not necessitate the taking of any notice by the plaintiff of her change. He is entitled to judgment against her by her former name. After judgment, scire-facias is proper to charge the husband. Roosevelt v. Dale, 2 Cowen, 581, and cases cited by counsel in that case. So in the case at bar.

After judgment, scire facias may be the appropriate remedy to charge the New Orleans, St. Louis & Chicago Railroad Company with liability, by virtue of its legal obligation to discharge, the obligations of the corporations of which it is composed.

The scire facias is quashed.