Byrd v. Byrd

28 Miss. 144 | Miss. | 1854

Mr. Justice FiSHER

delivered the opinion of the court.

This case comes before the court by appeal from a decree of the probate court of Franklin county, sustaining a demurrer to the appellant’s petition.

It appears by the petition, that at the October term, 1837, of said court, a decree was made requiring the appellee as the administrator of the estate of Asha Byrd, deceased, to pay to Wiley Wells, administrator of the estate of Lee Byrd, deceased, on account of his distributive share of the estate of Asha Byrd, the sum of §818.65; that Wells died about the 1st of April, 1844, without collecting the money; that administration de bonis non was granted to the appellee in February, 1853, and that he filed to the same term of the court, the present petition, for the purpose of reviving the decree made at the October term, 1837, of the court, and collecting the said money.

Among other causes of demurrer assigned, it is insisted that the decree is barred by the statute of limitations. The eighth section of the act of 1844, declares, that “judgments in any court of record in this State, shall not be revived by scire facias; nor shall any action of debt be instituted thereon after the expiration of seven years next after the date of such judgment.” Hutch. Code, p. 830, 831. The probate court is a court of record, and it is not contended that the claim sought to be enforced is not a decree of that court; and as such comes within the meaning of the statute. It is true, that there was no administrator of the estate of Lee Byrd from April, 1844, until February, 1853; but the statute had commenced running previous to April, 1844; and the rule is, that when it once begins to run, it runs on, unless the party is restrained by some statute from pursuing his remedy. Want of administration on the estate, would not be sufficient to stop the running of the statute, because the court would at any time, upon the application of a person interested, have granted letters of administration.

The other grounds of demurrer we will not consider as well taken; but the one above noticed, being fatal to the petition, the decree of the court below must be affirmed.

Decree affirmed.