Garrison v. Burden, 40 Ala. 513

Garrison v. Burden

40 Ala. 513 | Ala. | 1867

JUDGE, J.

The common-law maxim is, that personal actions die with the person. But this maxim has been modified, both in England and in this State, by statutory enactments. Section 2157 of the Code is as follows: “All actions on contracts, express or implied, all personal actions, except for injuries to the person or reputation, survive in favor of and against the personal representatives.” And such, in effect, was the statute law of this State prior to the adoption of the Code, with the exception, that the right to revive, under the prior law, was given only to the executor or administrator of the plaintiff. — Clay’s Digest, 314, § 6; Coker v. Crozier, 5 Ala. 369.

Is adultery, or criminal conversation with the wife, in legal contemplation, an injury to the person of the husband ? Blackstone and Chitty both declare that it is, and that the law gives a satisfaction to the husband for it, by an action of trespass vi et armis against the adulterer; and upon this point we are not aware that there is any conflict of authority. — 4 Black. Com. 139-40; 1 Chitty’s Pleadings, 168. See, also, Cox’s Adm’r v. Whitfield, 18 Ala. 738.

*516We can not concur with the counsel for the appellant, in the position, that the words, “injuries to the person,” within the meaning of section 2157 of the Code, are “direct physical hurts to the body of the person, and not mere injuries to his feelings unaccompanied by bodily hurt.” These words, in the connection in which they are used in the Code, are of technical import; and “ words which have obtained a fixed and definite meaning at common law, in reference to a particular subject, are presumed to be used in a statute, relating to the same subject, in their common-law sense.” Ex parte Vincent, 26 Ala. 145. Furthermore, before the adoption of the Code, the prior statute, cited from Clay’s Digest, in so far as relates to the present question, had been in effect construed by this court, in the case of Cox’s Adm’r v. Whitfield, supra. In that case, which was an action of crim. con., the judgment recovered against the defendant in the court below was reversed; but, the defendant having died pending the writ of error, the court refused to remand the cause, on the ground that the action had abated by reason of the death of the defendant. The legislature, in substantially re-enacting the provisions of the prior law, which had thus been construed, must be presumed to have had knowledge of, and to have adopted, that construction. Shepherd’s Digest, 745, § 29.

3. When the defendant died, the action stood abated. It was, in legal effect, out of court; and the order reviving it in the name of the representative of the deceased defendant, when known, was void for the want of jurisdiction in the court to make it. The order being void, no error was committed by the court in vacating it at a subsequent term. — Jones’ Adm’r v. Brooks, 30 Ala. 588.

4. But the court had no authority, after declaring the suit abated, to render a judgment against the plaintiff for costs. As a general rule, a judgment for costs can not be rendered in favor of any one, but a party to the suit. — Patterson v. The officers, &c., 11 Ala. 740; Griffin v. Smith, 14 Ala. 571; Scott v. John, 15 Ala. 566; Jones’ Adm’r v. Brooks, supra. The defendant was dead, and the officers of court, and witnesses in the cause, were not parties to the suit; and there *517was no party in court in favor of whom such a judgment could have been rendered.

The exception to the rule stated above, created by section 2389 of the Code, had no application to the case. That section is as follows : “ "When a plaintiff brings a suit, which he suffers to abate by the death of the defendant, or other cause; or where the suit abates by the death of the plaintiff, and his representatives fail to revive the same, judgment for costs may be rendered against such representatives, in the name of the officers of the court, and are paid as other claims against such estate.” If, under the peculiar phraseology of this section, a judgment for costs can, in any case, be rendered “in the name of the officers of the court,” against any other party than the “representatives” of a deceased plaintiff; still, we are of the opinion, that the section was intended to apply only to cases in which the cause of action survives, and in which the action is “suffered” to abate by the failure of the proper party to revive it.

As the judgment for costs was a nullity, no execution could issue upon it; and if one should issue, it would be superseded and quashed. — Patterson v. The officers, &c., supra. The officers of court, and witnesses in the causey who may be entitled to costs, have recourse against the party at whose instance they rendered services'. — Jones’ Adm’r v. Brooks, supra.

5. The judgment rendered in this cause, will not support an appeal. — Patterson v. The officers, &c., supra. If there had been error in the refusal of the court below to permit the action to be revived, the writ of mandamus would have been the appropriate remedy. — The State, ex rel. Nabors’ Heirs, 7 Ala. 459. And the judgment for costs is not only a nullity, but there is no adverse party to the appellant therein, against whom an appeal could be prosecuted; Burden being dead, and no officer of court, or witness, being named as a party in the judgment.

Appeal dismissed, at the cost of the appellant.