84 Tenn. 7
Tenn.
1885
Cooke, J.,

delivered the opinion of the court.

The defendant in error, Albert Akers, recovered a judgment in the circuit court in an action for libel, against George F. Akers, who appealed in error to this court. Pending the appeal the plaintiff in error, George F. Akers, died. Sci. fa. has been issued and *8served upon bis personal representative, requiring him to show cause why the case should not be revived against him. To this the personal representative has pleaded that the action against his testator was for libel, which was a wrong, affecting the character of the plaintiff below, and consequently there can be no revivor against him as the personal representative of the decedent.

To this plea there is a demurrer, the cause assigned being that the tort, which was the original foundation of the action, was merged in the judgment of the circuit court and thus became a debt, and the appeal in the nature of a writ of error, only had the effect to suspend, but did not vacate the judgment below.

The question thus raised is whether or not, in the present attitude of the case, there can be a revivor against the personal representative of the deceased party against whom the judgment was recovered below, or whether the cause or the appeal must abate?

That this was a personal action, which by the rule of the common law, died with the person, and that it is expressly excepted out of the provisions of section 2846 of the Code, is not questioned, and the only question is, has the character of the demand been so changed by the recovery of the judgment in the circuit court, as to take it out of the .common law rule above cited?

This rule applied to all torts or personal actions, until modified by the provision of the section of the Code above cited, which confined it to actions for wrongs affecting the character of the plaintiff. In the case *9of Kimbrough v. Mitchell, 1 Head, 540, which was a personal action for an assault and battery, and which, under the rule above referred to, also died with the person, the plaintiff had,- as in this case, recovered a judgment against the defendant in the circuit court, the defendant had appealed, and, pending the appeal in this court, had kdied, and an application to revive against his personal representative was resisted upon the identical grounds here taken, and it was held that in the attitude of the case, as then presented, the principle was not applicable, and the revivor was allowed. Judge McKinney, delivering the opinion of the court, said: “ By the recovery in the lifetime of the injured party, the claim for damages was merged in the judgment, and became a debt, with which the personal representative was chargeable. The demand being thus impressed with the character of a debt, it is clear that it is not only the right, but likewise the duty, of the personal representative to insist upon a revivor.”

That case had been determined in the circuit .court before the adoption of the Code, and the principle there announced as then applicable to an action for assault and battery, is still applicable in all its force to the case now under consideration. The learned judge, in that case, further said: “ The position is altogether mistaken, that the judgment is annulled by the removal of the cause into this court, and proceeds from losing sight of the distinction between a simple appeal and an appeal in the nature of a writ of error. The latter merely suspends the judgment of the inferior *10court, and does not annul' it, and consequently, if the appeal in error is abated or dismissed, the judgment below is left unimpaired and in full force.”

The principle decided in this case was cited approvingly in the case of Baker v. Dansbee, 7 Heis., 231, but it was there correctly held that the case then under consideration did not fall within the principle there decided. Chief Justice Deaderick, in that case, said: “ Plaintiff also relies upon Kimbrough v. Mitchell, 1 Head, 539. Here Mitchell had brought suit and obtained judgment against Kimbrough for assault and battery. Kimbrough appealed in error to this court. While the suit was pending in this court Mitchell died. His personal representative .made a motion to revive in his name. This was opposed, but the court held that the recovery having been had in the lifetime of the injured party, the claim for damages was merged in the judgment, and became a debt. That the appeal in error did not annul, but merely suspended the judgment of the inferior court.” “We do not think,” he adds, “that either of the cases cited has any application to this case, and which we may add, was an action instituted by the personal representative after the death of the party entitled to sue for the tort.” v

In the case of Bolin v. Stuart, 7 Baxt., 298, where an action for malicious prosecution had been instituted, and the verdict and judgment in the court below was for the defendant, and the plaintiff appealed in error, and pending the appeal the defendant died, the cause was abated on motion of his counsel, but the only *11question considered in that case was as to whether or-not an action for malicious prosecution was an action affecting the character of the plaintiff, and was consequently within the exception of the above cited section of the Code, and it was held that it was. Neither of the cases of Kimbrough v. Mitchell or Baker v. Dansbee, was cited or. referred to, nor was the question decided or recognized in those cases, and now under consideration in this, involved in the case of Bolin v. Stuart. There there had been no recovery upon the-demand against the defendant, and hence there could be no merger - or change of the nature of the demand. The plaintiff below had failed in his action, and the only demand he could have had against the personal representative was purely and solely upon the original alleged tort, and which unquestionably died with the defendant. But it is said by the counsel for the plaintiff in error, there was a judgmeut in that case for costs in favor of the defendant against the plaintiff. That is true, but there was no application on the part of the representative of the defendant to revive this judgment, but on the contrary, the motion to abate the suit was made by the counsel for defendant himself, and was an abandonment of any judgment tp-Avhich he or his personal representative might have been entitled for costs against the plaintiff, which was all he could possibly have claimed. The distinction between a simple, or as it is sometimes called, a broad appeal, and an appeal in the nature of a writ of error, and the principle that the latter does not vacate, but merely suspends the judgment of the court below, is *12uniformly recognized through our cases: Furber v. Carter, 2 Sneed, 1; Kimbrough v. Mitchell, 1 Head, 539; Galena v. Sudhumes, 9 Heis., 189; 12 Heis., 466; 3 Sneed, 208.

The judgment of the circuit court which has been appealed from, was not thereby vacated or annulled, but is only suspended, and is presumed to be valid until it is shown to be erroneous, or in some other manner properly vacated, and the demand upon which it was predicated having lost its character of a tort, and having acquired the nature of a debt by its merger into the judgment, is enforceable against the personal representative of the deceased, unless it is shown to be erroneous and vacated.

The defendant. in error is entitled to the revivor as sought by his sci. fa., the plea to which is no sufficient answer, and the demurrer will be sustained and the cause revived against the personal representative, and stand for hearing in its order on the docket. A reversal of the judgment would, of course, restore the demand to its original character, and the suit upon it would then be subject to abatement as though no judgment had ever, been rendered upon it.'