Torry v. Robertson

24 Miss. 192

• Court: Court of Appeals of Mississippi
• Decided: April 15, 1852
• Status: Published

Opinion

Mr. Justice Fisher

delivered the opinion of the court.

This was an action of assumpsit, commenced at the May term, 1843, of the circuit court of Claiborne county, by the Commercial Bank of Natchez, against a portion of the present plaintiffs in error and others, as to whom the suit was discontinued.

At the April term., 1847, the defendant in error appeared in court, suggested a dissolution of the corporation, by virtue of a judgment of forfeiture by the circuit court of Adams county, at the May term, 1845, thereof, made known his appointment as trustee by the said court, on pronouncing judgment of forfeiture, and moved to revive the suit in his name, as trustee, &c.; which motion was granted by the court; and this order presents the only error which we will notice in this opinion.

The counsel for the defendant in error has cited us to the cases of Nevitt v. The Bank of Port Gibson, 6 S. & M. 521; The Comm'l Bank of Natchez v. Chambers, 8 Ib. 44; and Chew v. Peale, 12 Ib. 700; and insists that they are decisive of the question now under consideration. We admit it to be a correct rule, “ that whenever the feet is the same, the law should also be the same; ” and keeping in view this principle, we will briefly glance at the state of facts before the court, in the several cases cited, and then endeavor to ascertain their true application to the case now under investigation; only remarking, in the language of a former judge of this court, in the case of Wade v. Grimes, 7 How. 435, “ that, however general the expressions used in those cases may be, they are to be confined to the subject matter before the court, and to the facts of the cause under consideration.”

The case of Nevitt was an appeal from an interlocutory decree of the chancellor, to this court; pending which, a judgment of forfeiture was rendered in the circuit court of Claiborne county against the Bank of Port Gibson, and trustees appointed under the statute, who appeared in this court, and asked to be made appellees, in lieu of the dissolved corporation; which motion was sustained by the court. On this part of the case, the majority of the court said: “ That, by the statute law of this State, the court of chancery and this court is each clothed with the power of making rules for the conduct of suits depending in them. In the exercise of this power, the chancery court has directed, that when any party shall die, the proper representatives of the personalty, or realty, as the case may be, may voluntarily come in, and be admitted a party to the suit. This court has adopted the rules of the chancery court for its guidance and government in chancery proceedings. We think the present case is comprehended by the rule.”

It has already been stated that the trustees voluntarily appeared in court, and moved to be made parties to the appeal, in lieu of the bank. Under the rule of the court quoted, it was decided to be competent for them to come into court in this manner, that is, voluntarily, and move to revive the appeal. Nothing is stated in the opinion of the court as to the rule of law which manifestly governed it in sustaining the motion; but the principle is very clearly stated in the authority cited in the opinion of Judge Clayton, and will be found in 1 Rob. Va. R. 522. The court there says, that “proceedings in error have never been subjected to the rules that govern the proceedings in the original suit in respect to abatements and revivors.” The learned judge, delivering the opinion of the court in the case last named, states further, that, “until the act of 1806 was passed, an original suit was abated by the death of either party before interlocutory judgment, and could not be continued by or against the representative.” “ But appeals and writs of error did not abate by the death of either party. The other party, or the representative of the deceased, might, in such case, revive the appeal or writ of error by scire facias.” The rule of law thus distinctly appears, upon which Judge Clayton placed the decision in Nevitt’s case, which will, on examination, be found to harmonize with the English practice in similar cases, where it is held, that if the plaintiff in error dies after errors assigned, it does not abate the writ. 2 Tidd’s Practice, 1163. Our statute having abolished the assignment of errors, the filing of the record in court would be regarded as equivalent to an assignment of errors.

The case of Chambers was a writ of error prosecuted by the Commercial Bank of Natchez, from a judgment of the circuit court of Scott county. .Pending this writ, a judgment of forfeiture was pronounced against the bank, and the present defendant in error having been appointed trustee, appeared in court, and moved to have the writ of error revived in his name; which motion was sustained by the court. The principles of law bearing on the point in Nevitt’s case, will apply with equal force to that of Chambers, as they were both motions for the same object in this court.

The case of Chew v. Peale, was a motion in the circuit court of Yazoo county, to revive a judgment rendered in the name of the bank, whose charter had been adjudged forfeited, and is not seen to have sufficient bearing on the point under consideration, to require farther notice.

We are next cited by counsel to the statute in Hutch. Code, § 47, p. 841, in these words: “ When any suit or action shall be depending in any court of this State, and either of the parties shall die before final judgment, the executor or administrator of such deceased party, either plaintiff or defendant, shall have full power (in case the cause of action by law survive) to prosecute or defend such suit or action to final judgment.”

To make this statute applicable to the question under consideration, it must be construed to embrace artificial, as well as natural persons. Will it bear such'construction ? At the time of the passage of the statute, the common law mode of proceeding against a corporation, for a violation of its charter, was in full force; and it was immaterial from what cause the corporation was dissolved; the law upon its civil death had provided for it no representative; the debts due to and from it became extinct, because the law permitting an executor or administrator to qualify on the estate of a deceased natural person, did not embrace an artificial one. When, therefore, the statute says that the executor or administrator shall have power to prosecute or defend an action commenced by or against the deceased to final judgment, we must understand it as embracing only those cases where the law allowed an executor or administrator to qualify. The law only allowed natural persons to have such representatives; such persons were, therefore, only embraced in the statute. If it had been intended to include artificial persons, provision would have been made on their civil death to give them representatives. No such provision was made, and they are, therefore, not within either the language or spirit of the statute.

But it is insisted the case is provided for by another section of the statute, Hutch. Code, 842, in these words: “And if, on the death of any plaintiff in actions which survive, before verdict, the heir, legatee or devisee, executor, administrator, or other legal representative of such deceased party shall not appear voluntarily on the return of a scire facias executed, and become a party to such action as hereinafter provided, on or before the second term of the court next after the death of such party shall have been suggested on the record, such action shall be discontinued.” It is insisted that the words or other legal representative of such deceased party, have no appropriate meaning unless applied to a case like the present. We will not undertake on the present occasion to assign them a meaning, but merely to ascertain whether they embrace the case before us. It has already been stated that the legislature, in speaking of the death of a party to a suit, had reference only to natural persons. By ascertaining the person whose death is spoken of, we know the estate to be represented. The words must, therefore, apply to the estate of a deceased natural person ; whether there ' can be any other legal representative of such a person than those named in the law, it is not necessary for us now to decide. We have said, that the law provided no representative for an artificial person, and the words cannot, therefore, be made to apply to a person who could have no representative.

It is, lastly, urged that the trustee, by virtue of the power given in the 8th section of the act of 1843, Hutch. Code, 331, to sue for, and collect all debts due to the bank, has a right to have suits pending at the time of the forfeiture revived in his name, where the bank was a plaintiff; and we are told that the point has received the adjudication of this court. Upon a careful examination of the authorities, we have not been able to find a case in which the question has been made in this court. The case of Chew v. Peale, was a motion to revive a judgment which had been recovered by the bank in the name of the trustee, and not a suit pending by the bank in the circuit court.

The question did not arise in Nevitt’s case, which was a motion to revive an appeal, which was fully sustained, as we have seen by the authorities. The same may be said of the case of Chambers. But it is said that the point was considered as decided before the Chambers case arose in this court; and we are cited to the language of the former chief justice on that occasion, which is this: “ Prior to the act of 1846, we decided that the trustees appointed under the act of 1843, on the dissolution of a corporation, were entitled to have all suits revived in their names which had been instituted by the corporation, and were pending at the time of the forfeiture. The act of 1843 authorizes them to sue; and having such right, they of course had a right to prosecute suits then pending.” The chief justice doubtless refers to the decision of the court in Nevitt’s case, as that is the first in which a question to revive appears to have been made; that case has already been sufficiently noticed, and we passed it with only this remark, — that the point whether the trustee could revive a suit pending in the name of the bank, at the time of dissolution, does not appear to have been presented by the record, or noticed by the court. Nor was such question presented by the record in the Chambers case. It is, therefore, one of first impression in this court, and we must determine whether the right exists as contended for under the statute of 1843, which gives the trustee the power to sue for, and collect the debts of the dissolved corporation.

At common law an original suit abated by the death of a natural person. Williams on Executors, 639. The power to sue and collect debts is given by our statute to executors, administrators, and collectors of deceased persons. Hutch. Code, 670, § 111. But the legislature never for a moment supposed that the power to sue for and collect debts would authorize suits commenced by the deceased to be revived and prosecuted to final judgment by the executor or administrator, and hence enacted the statute authorizing a revivor in such case. Hutch. Code, 841, 842. If this power to sue for and collect debts by executors, &e., authorized a revivor of a suit commenced by the testator, then the statute on this subject was wholly unnecessary. But legislation was desired to be complete on this subject, and to remedy the evil arising from a defect in the old law, and hence the special statute as to the revival of suits.

Under the law, an administrator de bonis non could sue for and collect the debts of the deceased; yet it was held by this court in the case of Portevant v. Pendleton, 1 Cushman’s R. 25, decided November term, 1851, that a suit commenced against the original administrator who had died, could not be revived against the administrator de bonis non succeeding in the administration, because by the common law such suit abated, and the legislature had not provided for the case. Here the power to sue and liability to suit, were complete, yet the suit could not be revived against the administrator de bonis non, because the law as to abatement in such a case had riot been changed by legislation.

Analogous to this question may be cited the case of an assignee in bankruptcy, who had power under the English law to sue for and collect the debts of the bankrupt. Yet this power did not authorize him to revive or continue in his name, suits commenced by the bankrupt. 1 Chitty’s Pleading, 23; 4 Bar. & Cress. 920.

This being thought a defect in the English bankrupt law, was provided against by congress in the bankrupt law of 1841, by enacting that all “ suits pending, in which the bankrupt was a party, might be prosecuted and defended' by the assignee to final conclusion, in the same way, and with the same effect, as they might have been by such bankrupt.”

The assignee had been previously clothed with ample power to sue for and collect the debts of the bankrupt, yet it was thought if legislation stopped here, it would be incomplete, and the defect in the previous law not sufficiently provided against; and, therefore, the power to sue and to revive suits pending, was expressly given by the law.

We are, therefore, of opinion that the assignee could not revive suits pending in the name of the corporation at the time of forfeiture, and that the order reviving in this case was erroneous.

Judgment reversed, and cause abated; defendant in error to pay costs of suit.

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A petition for a reargument was filed by the defendant in error in this case, but was refused to be granted by the court.