Christian & Craft Co. v. Dantzler Lumber Co.

78 Miss. 74 | Miss. | 1900

Terral, J.,

delivered the opinion of the court.

This is an action of assumpsit, instituted by five persons jointly against the defendant for the recovery of $1,005.47. One of the plaintiffs, Henry Buddig, died pending the action. His death was suggested upon the record, and several orders were made by the court looking to a revivor as to him in the name of his administratrix, but no absolute order of revivor was ever entered, though the judgment recites that it is taken in the name of the other joint parties and in the name of Mrs. Buddig, as his administratrix.

1. The judgment is not defective because of want of an order of revivor in the name of Mr. Buddig’s administratrix. . If such revivor were necessary, the right to it was waived by the defendants in not objecting to proceeding to trial unless such revivor was made. That a revivor is not necessary in such cases is supported by Gould on Plead., sec. 61, ch. 4. That the taking of a judgment without a revivor is a mere irregularity, and that the want of a revivor is waived by not objecting in the trial court, is supported by good authority. Code, § 664; Rice v. Shute, 5 Bur., 2613; Boson v. Tanford, 2 Salk., 440, note a.

2. The testimony of Shaw, the nonresident witness, should have been taken by the defendant before the sitting of the court. The absence of this witness, at the trial term of the court, was not a matter of which the defendant can complain of the.plaintiffs. The absence of the witness was, in our judgment no ground for a continuance, and the action of the court in that regard is not erroneous.

Affirmed.