| Tex. | Apr 15, 1867
Belcher sued Gibbs for an assault and battery, and recovered judgment for $>30 and costs of suit. Gibbs sued out this writ of error in this cause, and after that Belcher died, and Gibbs now moves the court to abate the suit and dismiss the cause, for the reason that the cause of action was a tort or an injury to the person of Belcher, and did not survive in favor of his representative.
A cause of action arising from a personal injury to a party in no way connected with a contract at common law dies with either party, and with it the remedy. Actio personalis m-oritur cum persorid. And we know of no statute that changes this rule in respect to this class of actions.-(12 Tex., 11" court="Tex." date_filed="1854-07-01" href="https://app.midpage.ai/document/watson-v-loop-4887985?utm_source=webapp" opinion_id="4887985">12 Tex., 11.) And if the party, Belcher, had died before the verdict in this cause, it must be admitted that the suit would necessarily have abated, and there would have been no survivorship of the cause of action; it would have died with the person injured. But we are not satisfied that the same rule obtains when the party dies after the rendition of a judgment in the district court. It was held in the case of Taney v. Edwards, at Austin term, 1863, [27
The case of Cox v. Windfield, 18 Ala., 738" court="Ala." date_filed="1851-01-15" href="https://app.midpage.ai/document/coxs-admr-v-whitfield-6504446?utm_source=webapp" opinion_id="6504446">18 Ala., 738, was an action for crim. con. Windfield recovered judgment in the lower court for $2,000, and Cox sued out a writ of error to the supreme court, and died before errors were assigned. The question was, whether the writ abated or could be revived and prosecuted in the name of his administrator. We will copy the language of Mr. Justice Chilton, in the opinion, to wit:
^It is conceded that at the common law a writ of error abated where the plaintiff died before errors assigned, and that our statute only allows the personal representative to be made a party for the purpose of prosecuting the writ in case the cause of action by law survives. It is insisted in this case by the defendant in error that the original cause of action does not survive. We readily grant that, had Cox died before final judgment in the court below, the suit would have abated by reason of his death. But a final judgment was rendered against him.
“The action here terminated, and it is very certain that his death, after the rendition of such judgment, did not annul it, but, on the contrary, it is conceded by the counsel that it could be enforced against the estate of the decedent, and that a scire facias would lie to revive it against his personal representatives. ¡Now, our law would be singularly defective, if a final but erroneous judgment could only be reversed by the defendant while living, thus making his*83 death operate as a release of all errors. It would be difficult to find a reason, which would give to the party himself a right to have an erroneous judgment corrected, and which would deny such right to his personal representatives. But such, we are persuaded, was not the law. After the writ of error was sued out and the record returned to this court, the action was pending here. The action was, by writ of error, to revise the judgment of the circuit court. The cause of action in this court is not the alleged criminal intercourse which Cox had with the wife of the plaintiff below, but the alleged error that intervened in the record of the proceedings and rendition of judgment in the circuit court against Cox, which this court is prayed to revise and' correct. This proceeding is a new action. The defendant below becomes the actor here, and the original cause of action has become merged in the judgment, to reverse which is the object of the present action. If, then, the judgment complained- of as erroneous survives, the cause of action as to the writ of error survives, and thus brings the case within both the letter and spirit of the statute above quoted. (4 Port., 9" court="Ala." date_filed="1836-06-15" href="https://app.midpage.ai/document/clark-v-clark-6529134?utm_source=webapp" opinion_id="6529134">4 Porter, 9-18; Pope v. Welch, 18 Ala., 631" court="Ala." date_filed="1851-01-15" href="https://app.midpage.ai/document/pope-v-welshs-admr-6504417?utm_source=webapp" opinion_id="6504417">18 Ala., 631.)”
Articles 537 and 538, O. & W. Dig., provide for making parties in the district court whenever the cause of action survives and either party has died before verdict. [Paschal’s Dig., Arts. 6, 7, Notes 224, 225.] Neither of these sections embrace a tort, in which the cause of action does not survive. Article 536 provides for all suits where either party dies between verdict and judgment. [Paschal’s Dig., Art. 5.] It must be entered as if both parties were living. This is not confined, like the other sections, to causes of action that survive. Articles 540 and 541 are applicable alike to all cases in which one of the parties dies after judgment. [Paschal’s Dig., Arts. 13, 14, Notes 227, 228.] It is regarded as a valid and subsisting claim, and a mode of collection is given for the plaintiff, and against the defend
Article 1909, O. & W. Dig., provides, that “when any person, plaintiff or defendant, in any suit pending in said (supreme) court shall die, it shall he lawful for the clerk of the said court, during the recess of the court, upon application by petition, to issue proper process to enable the court to proceed to a final judgment or decree in the name of the representatives of such deceased person.” [Paschal’s Dig., Art. 1573, Note 608.] It will be perceived there is no distinction made in the classes of cases which may be pending in the Supreme Court. Whether the cause of action was such as survived at common law or not, process is directed to issue to the representative of the deceased party, in order that the court may proceed to final judgment or decree.
The writ of error is a new action, brought in a superior court, founded upon a judgment of an inferior court, for the purpose of supervising it and correcting any error there may have been in the proceedings of the court below. The death of the plaintiff in error, before the assignment of errors, at common law, operated to abate the writ of error in any suit, whether founded upon a cause of action that did not survive, or one that did; hut this abatement of the writ of error did not operate to vacate or annul the judgment in the inferior court, whether founded upon a tort or a contract. But the death of defendant, before or after error assigned, did not abate the writ in any personal action. If the death of defendant happened before the
We believe that the original cause of action for the assault and battery was merged in the judgment of the district court, which is a quasi contract, was not opened or vitiated as a subsisting judgment by the writ of error in this cause, but remains a subsisting and final judgment, a right of action upon which survives in favor of the administrator of Belcher, and will remain a valid judgment, impressed with force and verity, until set aside by some legal proceeding for that purpose. The supersedeas in the cause prevents the issuance of an execution during the pendency of the cause in this court, hut does not affect the force and validity of the judgment of the district court.
It may he urged that, if this court should reverse the judgment rendered below, and send the cause hack for a new trial, then the cause would necessarily abate, by rea
We are of opinion that the writ of error does not abate by the death of Belcher, and that the cause of action does survive to his administrator in this court; that he is properly made a party; and, therefore, the plaintiff’s motion to abate the writ and dismiss the suit is
Overruled.