Garrison v. Myers

12 W. Va. 330 | W. Va. | 1878

Johnson, Judge,

delivered the opinion of the Court:

The first ground of error assigned in thé decree is,

“that the circuit court evidently misconstrued the case and committed a plain error in treating it as a suit in. equity, and proceeding accordingly to dispose of the issues joined on the pleas filed by the appellant, vs-~ plaintiff in error, against his protest.**

It was the old practice, when a suit becomes abated after a decree signed and enrolled, to revive the decree by a subpoena in the nature of a scire facias, upon the returning of which the party, to whom it was directed, might show cause against the reviving of the decree, by insisting that he was not bound by the decree, and showing why; or that for some other reason it ought not to be enforced against him; or that the person suing out, the subpoena was not entitled to the benefit of the decree. It he opposed the reviving of the decree on the ground of facts, which were disputed, he was examined upon interrogatories, to which he might answer or plead; and, issue being joined and witnesses examined, the matter was finally heard and determined by the court. But if there had been any proceedings subsequent to the decree, this process was ineffectual, as it revived the decree only, and the subsequent proceedings could not be revived except by bill. The enrollment of decrees being much disused it became the practice to revive in all cases indiscriminately by bill: Story Eq. Pleading sec. 366.

In this State the statute as to reviving suits is as follows: By Sec. 4 of ch. 127 of the Code it is provided, that “In any stage of any case, a scire facias may be sued out, for or against the committee of any party, who> is insane or a convict; or for or against a party before insane, the powers of whose committee have ceased ; or for or against the personal representative of the deced(ent, who, or whose personal representatives was a party; .or for or against the heirs, or devisees of a decedent; who was a partyor for the assignee or beneficiary party, to show cause why the suit should not proceed in the name of him or them; or where the party dying, or whose powers cease, or such insane person or convict, is plaintiff or appellant, the person or persons, for whom such scire facias might be sued out, may without notice or scire facias move,that the suit proceed in his or their name. In the former case after the service of the scire facias, or in the latter case on such motion, if no sufficient cause be shown against it, an order shall be entered, that the suit proceed according to such scire facias or motion. Any such new party (except in an appellate court) may have a continuance of the case at the term, at which such order is entered; and the court may allow him to plead anew, or amend the pleadings, as far as it deems reasonable, but in other respects the case shall proceed to final judgment or decree, for or against him, in like manner as if the case had been pending for or against him, before sunk scire facias or motion.”

It is clear that a scire facias, to revive a suit or action, decree or judgment, can only be issued in the suit to be revived ; and if the suit was in equity, the saire yllabug j facias must be in equity, and be governed by the rules of that court; and if the action was at law, the proceedings must conform to the rules of that court. Therefore we do not think the court erred, in treating the scire facias in this cause, as being a proceeding in equity.

No motion Avas made to have the issues tried by a jury; it is therefore unnecessary to decide what would have been the effect of the denial of such a motion, as the question does not arise.

The second error assigned is, that the court overruled, or disregarded the plea of nultiel record, in the absence of the record, or any evidence to sustain the scire facias.

Sy]Iabtig 2 It was the defendant’s duty, if he could, to show cause against the revival of the decree; the mere filing of his pleas Avould not do, the Avhole record in the cause was before the chancellor, and the scire facias recites sufficient of the record to sIioav, that the decree ought to have 7 n „ „ ,. byllaous 3 been revived, and being revi\red, the appellate court will presume, in the absence of the record, that it fully justi-the court iu its action. It certainly will not be-seriously contended, that the court erred in rejecting the third plea, which was, that the Supreme Court of - Appeals had no jurisdiction to enter the decree, it did at Charlestown in 1873. The learned counsel in his notes seems to have tacitly abandoned that assignment of error.

Certainly the appellate court would not hold, that the court below erred, in refusing to review and hold for naught a mandate sent to it by the Supreme Court of Appeals.

We see no error in the order of the court reviving the decree, and the same is affirmed with costs and damages.

The other Judges concurred.

Decree Affirmed.