44 Ala. 324 | Ala. | 1870
This is an appeal from the circuit court of Limestone county. On the 24th day of March, 1866, Darius Lynch, as the administrator of the estate of Thomas Lynch, deceased, brought an action of debt in the circuit court of Limestone county, againsCPeter F. Garrett, Benjamin B. Peete, and William H. Garrett, by summons and complaint. The complaint" shows that the plaintiff claimed of the defendants, the sum of five thousand one hundred and sixty dollars, due by bond executed on the 6th day of December, 1860, and payable twelve months after date of said bond. It is also alleged that said bond was the property of said estate, and assets of said deceased. The summons was properly executed on all the parties defendant on the 28th day of March, 1866.
Afterwards the following judgment was rendered in said circuit court, to-wit:
“And now, afterwards, to-wit, on the 8th day of April, 1867, being a day of the regular term of said circuit court, and the trial term of said cause, came the plaintiff, by his attorneys, and suggests the death of Benjamin B. Peete, and this suit abates as to him; and the other defendants, P eter F. Garrett and William H. Garrett, being solemnly called came not, but made default: It is therefore considered by the court, that the plaintiff recover against said surviving defendants the sum of five thousand, one hundred and sixty dollars debt, in the complaint mentioned, together with the further sum of two thousand, two hundred and one dollars, and seventy-five cents, damages sustained by reason of the detention of said debt, besides the costs in this behalf expended,” &c.
This judgment is brought here on appeal by the defendants, Garretts, for revision on the following errors:
“ 1st. The appellants in this case assign as error the judgment of the court below.
“ 2d. That the circuit court erred in rendering judgment by default against appellants, because the action against them had been discontinued.
These assignments of error are based on a statute of this- State, found in the Revised Code, which is in the following words, to-wit:
“ Suits against joint obligors shall not abate, or be discontinued or dismissed as to any one or more of such obligors, who may die pending the same, but may be revived against the representatives of such deceased obligor or obligors ; and the suits may proceed against the survivors of such representatives, but no judgment must be rendered against such representatives until after the .lapse of eighteen months from the grant of letters.
“ In suits against joint obligors, where one dies pending the suit, judgment may be rendered against the survivors at the trial term, and this suit be continued as to the representatives of the deceased obligor, and the judgments, when rendered, shall be several as to the survivors and the representatives of the deceased, and the satisfaction of one judgment shall be the satisfaction of all the judgments as to principal, interest and damages, except where the same, beiDg against the principal obligor, is or may be assigned by the plaintiff for the benefit of a security under the law of the State, authorizing such assignments of judgments in other cases.” — Rev, Code, §§ 2546, 2547 ; Acts 1866-7, p. 699, §§ 1, 2.
There is no repealing clause in the act above quoted. Then it left the remedies which existed before its passage unaltered, and merely added another remedy to them. The practice, as settled at. a very early day in this court, allowed just such a judgment as that rendered in this case. Harrison v. King, Minor, 364. Besides, this judgment is in conformity with the second section of the act above cited. Here the suit was against joint obligors, and one of them died pending the suit. In such a case, it is the language of the statute, that judgment may be rendered against the survivors at the trial term. That is just what has been done in this instance.
The learned counsel for the appellants insist that the practice pursued in this case amounts to a discontinuance at common law. We think otherwise. A discontinuance results from an unauthorized dismissal of a suit against one of several defendants, who has been served with process, and against whom it is competent to proceed without a revival.— Whitaker v. Van Horn, January term, 1869, and cases cited. Here the suit could not proceed against the dead defendant, but could only proceed against his representative upon revival. And this revival is optionary with
It is therefore the judgment of this court, that the judgment of the court below be in all things affirmed.