6 Neb. 516 | Neb. | 1877
During the pendency of the cause in the court below the plaintiff in the action died, and it was revived in the name of defendant in error as administratix. The principal point made in the argument for plaintiff in error is, that the defendant in error is a foreign adminstratrix, and therefore the revival of the action in her name is error. It is conceded that in the absence of a statutory law permitting it, a foreign executor or administrator cannot sue or prosecute an action as such in another state. However, the point made in the argument might be answered by the remark that the record does not show the defendant to be a foreign administratrix; but admitting such to be the fact, does not our statute.sufficiently provide for the revival of an action in the name of such foreign administratrix?
Section 337, Chap. XIY, Revised Code (.1866), provides that “an executor or administrator duly appointed in any state or country, may commence and prosecute any action or suit, in any court of this state, in his capacity of executor or administrator, in like manner and under like restrictions as a non-resident may be permitted to sue.”
The only restriction imposed by statute on a non-resident to sue in this state is, that he “ must furnish sufficient surety for costs.” In respect of actions which survive or continue, it is provided by section forty-five of the civil code that in the case of the “ death or other disability of the party, the court may allow the action to continue by or against his representative or successor in interest;” and section four hundred and fifty-eight of ■ the civil code provides that, when a party in an action dies, “ if the right of action survive in favor of or against
These statutory provisions all relate to the one general subject of an action, commenced, prosecuted, or revived in any of the courts of this state, and must be taken together and- construed as if they were one law.. This is an ancient and well-established rule of construction.
In the case of the Earl of Ailsbury v. Patterson, Doug. 20, Lord Mansfield held that “ all acts in pari materia are to be taken together, as if they were one law. * * * When there are different statutes in pari materia, though made at different times, and not refering to each other, they shall be taken and construed as one system, and explanatory of each other.” .
In United States v. Freeman, 3 How., 557, it is said “ the correct rule of interpretation is, that if divers statutes relate to the same thing, they ought all to be taken into consideration in construing any one of them, and it is an established rule of law, that all acts in pawi materia are, to be taken together as if they were one law.” The People v. Weston, 3 Neb., 312. White v. Blum, 4 Neb., 561.
When the above statutory provisions are construed according to this rule, if they mean any thing at all, their purpose is to authorize an administrator, foreign or domestic, to commence and to prosecute any action or suit, in any court of this state, in his capacity of administrator, and in case of the death of the party plaintiff to an action or suit, if the right of action survive, to revive the same in his name as such administrator. This seems to be the only reasonable construction of these statutory provisions, when they are taken together as one system.
Again, it was insisted that the court erred in sustaining the motion for the revivor of the action. To this motion and the proceedings for revivor of the action in the
The record shows that the case was heard before the court, and that to its, decision the plaintiff excepted. It does not show what were the proofs, or whether any were or were not made on the hearing of the case; and therefore it must be presumed that the findings of the court are based on sufficient proof of the facts. Wilcox v. Saunders, 4 Neb., 582. Eastman v. Wight, 4 Ohio St., 159.
The statute provides the mode and regulates the practice in cases of revivor of actions. The mode of pro-, cedure, when not by consent, is by motion and conditional order of the court, if made in term, or by a judge thereof, if made in vacation; and the statutory provisions very plainly indicate that the question ,of revival of the action in the name of the administrator must be finally determined on the hearing of the case, upon the motion and conditional order and answer thereto of the adverse party. And that this is the correct interpretation of the statute seems quite clear from the fact that no step can be taken in the prosecution of the action until there is a revival of the action by the substitution of the proper representative in the place of the deceased party. And this judgment or final order of revivor, unless reversed or vacated on error, is conclusive, and cannot be reviewed on the subsequent trial of the cause;
Again, the error complained of in regard to the service and return of the conditional order, if any did occur, was waived by the plaintiff’s voluntary appearance and denial of the facts stated in the motion and conditional order.
In respect to the attorney’s fee, it is sufficient to observe the statute provides that in actions upon written instruments for the payment of money only, where the instrument expressly provides for the allowance of an attorney’s fee, the court shall fix the amount, not to ex ■ ceed ten per cent of the recovery, and that this allowance is not part of the judgment for the debt itself, but is merely taxed as costs and can be excepted to and reviewed in like manner as the taxation of other costs may be. Rich v. Stretch, 4 Neb., 189.
It was insisted that the court erred in giving a brief oral instruction to the jury; but this assignment of error cannot be considered because it does not appear in the record that any exception was taken to this instruction. Horbach v. Miller, 4 Neb., 43.
The judgment of the court below must be
Affirmed.
