Winter v. Shankland

3 Tenn. Ch. R. 361

• Court: Court of Appeals of Tennessee
• Decided: April 15, 1877
• Status: Published

Opinion

The Chancellor :

A scire facias to revive a suit against the personal representatives or heirs of a party who has died is in the nature of a notice or summons. The statutes speak, of the process as a scire facias or notice. Code, secs. 2856, 4425. If a bill of revivor were filed, it would simply allege-the death of the party, and an ordinary summons would issue. The death, in that case, would not be proved in advance to authorize the issuance of the writ. Proof is required to work an abatement, not as a prerequisite to the-issuance of pi'ocess to revive. In this case, the order on the rules shows the suggestion and proof of death, and the scire-facias, although inartificially worded, contains all the requisites prescribed by the Code, sec. 4428, — namely, the-names of the parties to the suit, the filing of the bill, pen-dency of the suit, and death of the party. That the latter . is in the form of a suggestion is immaterial. The scire facia# is sufficient, and the motion to quash is disallowed.