State Fair Ass'n v. Townsend

63 S.W. 65, 69 Ark. 215, 1901 Ark. LEXIS 69

• Court: Supreme Court of Arkansas
• Decided: April 6, 1901
• Status: Published

Opinion

Riddick, J.,

(after stating the facts). The question here arises on a motion to strike this ease from the docket because not revived against the administrator and heirs of defendant within the time allowed by the statute. Our statute provides that “an order to revive an action against the personal representative of a defendant, or against him and the heirs or devisees of the defendant, cannot be made, unless by consent, until after six months from the qualification of the personal representative.” Sand. & H. Dig., § 5934. This provision of the statute refers to the final order of revivor. The preliminary order requiring the personal representative to show cause can be made so soon as the administrator is appointed and qualified. McNutt v. State, 48 Ark. 30. The preliminary order of revivor or order to show cause may be served upon the personal representative as soon as convenient after being made; but the final order reviving the action cannot be made until six months after the qualification of the personal representative.

Kow, Joe Townsend died on the 6th of March, 1899, and, his administrator having been appointed and qualified on the 11th day of the same month, the preliminary order of revivor and to show cause could have been made during the same month. As the next term of this court began on the 22d of May following, there was ample time to have served the order, even by publication, in time to have procured the final order of revivor at that term. If the proper steps had been taken, the final order of revivor could have been made six months after the appointment and qualification of the administrator. This appointment and qualification, as before stated, was on the 11th day of March, 1899, and the final order could have been obtained on the 11th day of September, 1899, or at the rfext session of the court, which Was' on the' 2d day of October, 1899. But it was nearly a year after this time before the preliminary order of revivor was made, - and over a year before any attempt was made to serve such order on either the administrator or heirs of Townsend.

The statute provides that "aa order to revive against the representatives or successor of a defendant shall not be made without the consent of such .representatives or successor, unless in one-year from the time it could have been first made.” .Sand. & H. Big., § 5935. As it was over a year after the revivor could have been first made before any summons or warning order was issued against either the heirs or administrator, we are of the opinion that the action cannot now, to quote the language of the statute, be revived against “the representatives or successor” of the defendant, without their consent.

After considering the argument of counsel on the question as to whether the heirs of the defendant are included within the meaning of the words “representatives or successor of a defendant” used in the statute, we are of the opinion that they are included. The word “representative” means in law one who represents or stands in the place of another. It is frequently used to denote the personal representative — in other words, the administrator or executor — of a deceased person, but it has also a broader meaning, and the word “representatives,” as used in this statute, we-think was intended to include both the heirs and administrator or executor of a plaintiff or defendant who has died pending the action. The whole statute on this subject, when taken together, makes this very clear. For instance, one section provides that upon the death of a plaintiff in an action it may be revived in the name of “Ms representatives to whom his right has passed.” It then provides that, if his right has passed to the personal representatives, the revivor shall be in his name; if it has passed to the heirs, the revivor shall be in their names; thus clearly distinguishing the meaning of “personal representatives” from “representatives,” as used in the statute, and showing that both the personal representative and the heirs are included within the general term “representatives” of the plaintiff or defendant.

It follows, then, that, in our opinion, the action cannot be revived against either the heirs or personal representatives unless ■within one year from the time it coulcl have been first made. But it is said, conceding this to be true, the administrator has appeared of his own motion, and a revivor can be had against him. The record shows that on one occasion, before any motion to revive had been made, the cause was continued by consent, but it does not show that the administrator has in any way consented to the revivor of the action, or that he has appeared to the proceedings to revive, except to move to dismiss it. If at the time, or after, the preliminary order to revive or show cause had been made, the administrator had appeared, this would have dispensed with summons as to him; but his only appearance after the proceedings to revive were commenced was for the purpose of moving to dismiss the appeal because not revived within the time required by the statute, and for this reason we think the point is not well taken.

We have concluded that, as the administrator and heirs do not consent to a revivor, and as the time during which the law permitted a revivor without their consent passed without any summons having been issued against them, the motion to dismiss the appeal must he sustained, and the case stricken from the docket of this court. It is so ordered.

Bunn, C. J., dissents. Hughes, J., not participating.