delivered the opinion of the court.
This was a suit brought by William Lake, against the plaintiffs in error and others, to the November term, 1839, of the circuit court of Jefferson county.
The cause rеmaining in court undisposed of at the October term, 1848, of said court, the рlaintiff’s death was then suggested. No other step appears to hаve been taken until the April term, 1851, when the defendant in error voluntarily appeared in court, and on his motion the suit was revived in his name, as administrator of Lake; and the cause continued to the' next term of the сourt, when the demurrer of the plaintiff to the defendant’s special plea coming on to be heard, was, by the court, overruled. The defendants below then moved for judgment on their plea, but the court, on the аpplication of the administrator, granted him leave to reply tо the plea. The replication having been filed, the parties wеnt to trial, the defendants making no objection as to the manner in which the suit had been revived, when a verdict and judgment were rendered in favor оf the plaintiff below as administrator of Lake.
It is now objected, for the first time, that the court below erred in admitting the administrator to become a party to the suit, without resorting to a scire facias against the defendants, requiring them tо show cause why the suit should not be revived, &c. The statute provides, “ that when any suit or action shall be depending in any court of this State, and either of the parties shall diе before final judgment, the executor or administrator of such deceased party, either plaintiff or defendant, shall have full power (in сase the cause of action by law survive) to prosecute оr defend such suit or action to final judgment, and the defendant is obliged to аnswer thereto accordingly.” The statute further provides, “ that if the executor or administrator, having been duly served with a scire facias, or citatiоn from the office of the clerk of the court where such action is depending
We see nothing in this provision of the law prohibiting the rеpresentative of a deceased party, either plaintiff or defendant, from coming into court voluntarily and making himself a party to thе suit. On the contrary, the statute seems most clearly to sanction such рroceeding, by declaring that the court may render such judgment against a party brought in by scire facias, as it could render if he had come in voluntarily. This law does not appear to admit of construction. It merely prescribes a mode by which persons who will not of their own accord, bеcome parties to a suit, may be compelled to do so.
But it is said that the cause should have been discontinued, inasmuch as more thаn two terms of the court elapsed after Lake’s death was suggested, before the administrator became a party to the suit. We deеm it unnecessary to quote the language of the statute bearing upon this question. It is sufficient to say that the defendants below made no motion tо have a discontinuance of the cause entered, but elected to proceed to trial on the merits. If it were their right to have the cause discontinued, it was, nevertheless, a right which they could waive, and which they did waive by not calling the court’s attention to the situation of the case at the proper time.
Judgment affirmed.