Dumas v. Robbins

48 Ala. 545 | Ala. | 1872

PECK, C. J.

1. The motion to dismiss the appeal must be overruled, The ground of said motion is, that the appellant had not been made a party plaintiff, as trustee, in the place and stead of "William A. Kimbrough, in whose name, as trustee, the action was commenced. This is not sustained by the record. The record shows that said Kimbrough, the trustee, had resigned and made a final settlement in the chancery court, and that appellant had been duly appointed trustee in his place, and on his motion the court had ordered the suit to be continued and prosecuted in his name, as trustee and successor of said Kimbrough. This was done at the fall term of the court, 1869.

2. At the spring term, 1871, on the motion of the defendant Bobbins, (the action having been discontinued as to the defendant Shipley, on whom the summons had been returned not executed,) the cause was stricken from the docket, and judgment rendered against the appellant, as plaintiff, for the costs. To this decision of the court the appellant excepted. The reason for this ruling of the court is not stated, but I presume it was, that the action abated by the resignation of said Kimbrough as-trustee, and could not be revived in the name of appellant as his successor.

Section 2542 of the Bevised Code enacts, that “no action abates by the death or other disability of the plaintiff or defendant, if the cause of action survive or continue; but the same must, on motion within eighteen months thereafter, be revived in the name of, or against the legal representative of the deceased, Ms successor or party in interest ; or, the death of such party may be suggested upon the record, and the cause proceed in the name of, or against the survivor.” I understand the words “other disability,” as here used, to refer to a disability that intervenes without the death of the party, whether plaintiff or defendant. So understood, they embrace the present case, for, by the resignation of said Kimbrough, as trustee, the suit could not be further prosecuted in his name; he thereby ceased to have any title to the note, the foundation of the action, and on the appointment of the appellant as his successor, the legal title vested in him, and unless the action could be revived in his name, it must, necessarily, have abated. It was the intention of the said section, as it seems to me, to prevent this, by authorizing the action to be revived in the name of appellant, as the successor of said Kimbrough. This interpretation harmonizes with the spirit of our legislation on this subject. Section 1593 of the Revised Code provides, that “ upon the death of a sole or surviving trustee of an express trust, the trust estate does not descend to his heirs, or pass to his personal representatives.” It would seem, then, necessarily to vest in his successor; and I can see no good reason why this should not be so, in case of a resignation.

Chapter 9, p. 652 of the Revised Code provides for the resignation and appointment of trustees of such trusts, and these provisions, I think, clearly contemplate that the succeeding trustee is to stand in the shoes of his predecessor, and if a suit be pending in his name, as trustee, either as plaintiff-or defendant, it maybe revived and prosecuted by or against his successor.

The several sections of the Revised Code above referred to are manifestly remedial provisions, and should be liberally construed. Believing the foregoing to be their true interpretation, it follows, the court below erred in sustaining the defendant’s motion, and striking the said cause from the docket.

The judgment is reversed, and the cause is remanded for further proceedings, at the appellee’s cost.