Ex parte Ware

48 Ala. 223 | Ala. | 1872

PECK, C. J.

It is very clear that an action may be brought against one partner, on a contract made by the firm, (§ 2538, Bevised Code,) and it is equally clear that on the death of the defendant', in such a case, the action may be revived against his personal representative, (§ 2555, Bevised Code.)

Section 2542, Bevised Code, declares 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, his successor or party in interest.” After such revivor, no judgment may be rendered against such legal representative until after eighteen months from the grant of letters testamentary or of administration. — § 2544, Bevised Code.

The circuit court should have granted the petitioner’s motion, and ordered the said action to be revived in the name of said Shorter, the administrator of said deceased, as defendant.

The refusal of said court to do this is an injury to said petitioner, for which we know of no,adequate remedy but the writ of mandamus. The writ of mandamus lies whenever a party shows a clear legal right, without any other legal remedy for its enforcement. — Shepherd’s Dig. p. 696, and the cases there cited.

Let a rule issue, directed to the'circuit court of Bussell county, to be served on the judge presiding in said court; commanding him, on the motion of the plaintiff in said action, or his attorney, to make an order reviving the same, in the name of the legal representative of said Benjamin Eontaine, deceased, or that he show cause, at the next term of this court, on Thursday, the motion day of the fifth division of this court, why he has not done so.