42 S.C. 383 | S.C. | 1894
The opinion of the court was delivered by
The plaintiff brought this action for the foreclosure of a mortgage of real estate, and after the case had proceeded to a stage in which it was ready for a hearing on the merits, the defendant departed this life, leaving, as alleged, her last will and testament, whereby, amongst other things, she devised to her two sons, William Carson and James Petigru Carson, who are her sole heirs, the premises covered by the mortgage which the plaintiff is seeking to foreclose. Upon these facts, stated more in detail in an affidavit submitted, the plaintiff applied to his honor, Judge Izlar, for an order: 1st. That the action be continued against the said William Carson and James Petigru Carson, the sole heirs and devisees of the said Caroline Carson. 2d. That a copy of the order be served by publication on the said William Carson and James Petigru Carson, who are absent from and
Judge Izlar, before hearing the motion, stated that he had been requested by Mr. H. E. Young, counsel on record for Caroline Carson, deceased, defendant, to give him notice before granting any order in the case. Thereupon, Mr. Young was sent for, came into court, and argued against the motion, stating that he did not appear for the devisees of Mrs. Carson, but as amicus curice. In the course of the argument counsel for plaintiff asked the court if it declined to grant the order in the form asked for, then to modify it only to the extent of issuing a rule nisi against the heirs of Mrs. Carson, to show cause why the action should not be continued against them, and in default of good cause shown, that the same beso continued. After' hearing argument, the court refused to grant the order as asked for by plaintiff, and on the 30th of August, 1893, granted an order, a copy of which is set out in the “Case,” and which should be incorporated in the report of the case. This order contains the following paragraph: “It is, therefore, ordered, that William Carson and James Petigru Carson, sole heirs and devisees of Caroline Carson, above named, appear and answer the complaint herein within twenty days from the service of this order upon them, or that in default thereof, the plaintiff may apply to the court for an order entering their appearance, and directing the action to stand revived and continued against them, as heirs at law and devisees of Caroline Carson, and that the answer of Caroline Carson be then deemed the answer of said William Carson and James Petigru Carson, as heirs at law and devisees of Caroline Carson.”
From this order, plaintiff appeals upon the several grounds
By reference to Story’s Eq. Pl., sec. 370 and 377, it will be seen that in such cases the general rule was, that no answer to a bill of revivor was either necessary or proper, except simply to put in issue the fact as to whether the party sought to be brought in bears such a relation to the deceased as makes him a proper party; as for example, whether he is the heir at law or administrator of such deceased party. If the defendant in his answer to such a bill should undertake to state other matters, or set up defences to the original bill, the answer would have been treated as impertinent. In Fretz v. Stover, 22 Wall., 198, after answer filed and testimony taken, the defendant Stover died, and a bill of revivor was filed to make his brother, who was his sole devisee and legatee, and also the executor of his will, a party defendant. The brother appeared and answered, admitting the character imputed to him by the bill, and setting up new defences. The court held such new defences impertinent, saying: “Nothing could be brought into the litigation by the bill of revivor besides the mere question whether the brother brought in on the bill of revivor was the executor of the will of Stover, and his legatee and devisee.” The same doctrine was held in Gunnell v. Bird, 10 Wall., 304. See, also, to the same effect 3 Dan. Ch. Pl. & Prac. (Perkins’ edit.), 1711.
It is contended, however, that where the parties sought to be brought in were devisees and not heirs at law, that is, where the relationship of the new parties to the deceased arises from the act of the parties and not by operation of law, the action could not be revived by an ordinary bill of revivor, but that it was necessary to file an original bill in the nature of a bill of revivor. In 3 Dan. Ch. Pl. & Prac., 1718, the author, after stating that where the transmission of interest was by operation of law, “there is no other fact to be ascertained than whether the new party brought before the court has the character imputed to him,” goes on to say that there are cases in which other facts may be brought into litigation: “Thus, if the death of a party, whose interest is not determined by his death, is attended with such a transmission of his interest that the title
We are of opinion, therefore, that the Circuit Judge erred in so much of the order appealed from as permits William Carson and James Petigru Carson to “answer the complaint herein,” and their answer should be restricted to the points above indicated.
The judgment of this court is, that the order appealed from be reversed, in so far as it conflicts with the views herein an