Hatch v. Cook

9 Port. 177 | Ala. | 1839

GOLDTHWAITE, J.

The sole question presented by this rectord, is, whether the death of the plaintiff can properly be suggested, and his administrator made a party to the suit, whilst its trial is progressing.

The plaintiff in error contends, that the death ought to have been regularly pleaded, as the suggestion was denied, but the law has provided no such mode of ascertaining the fact. We are not aware that any one, on behalf the plaintiff, can intervene, and plead this matter. If the defendant was advised of the death of the party, and those prosecuting the cause, would not admit his death, the suit might he arrested by his interposing a plea puis darrien continuance, but when the death of either one of the suitors is suggested by those, who before had represented him in the cause, the court must of necessity ascertain the fact in some other manner than by plea. In most instances, the proceeding to judgment, when either party is dead, but more especially when the defendant is so, is an irregularity, for which the judgment may be avoided.

The act to prevent suits from abating, on the death of either party, (Aik. Dig. 259,) provides, that when any cause shall be depending in any court, and either of the parties shall die before final judgment, the executor or administrator of such deceased, who was plaintiff, petitioner or defendant, shall have full power, (in case the action by law survive,) to prosecute and defend such action, until final judgment: no mode' is pointed out, by which the death shall be brought to the knowledge of the court; it therefore becomes necessary to adopt some reasonable means for ascertaining the fact. The usual practice which prevails, is to suggest the death, which, if not denied, is entered on the record, and the cause proceeds, when thé representative of plaintiff produces his letters testamentary or of administration: if the defendant is the party dead, his representatives either make themselves parties in á similar manner, or the plaintiff proceeds to bring them into court by scire facias. It is not known what practice has obtained on the circuits, when the suggestion of the death is denied, but in such a case, it is proper that the facts should be shown by affidavits. In the present case, the fact of the death was not denied, but the objection seems to have been as to the time, when the representative of the plaintiff made himself a party.

In this respect, we think there is no error in the action of the County court, and its judgment is affirmed.