44 S.C. 386 | S.C. | 1895
The opinion of the court was delivered by
For a proper understanding of the questions raised by the exceptions herein, it will be necessary to state only the following facts: This action was commenced on the day of February, 1892, for the partition of the lands of Daniel Ruthven, who died intestate on the 17th of April, 1866; also for an accounting by the defendant, C. G. Ruthven, who administered on his personal estate, and gave Alexander Douglass and D. L. Campbell as sureties on his administration bond, dated 21st of May, 1866. Alexander Douglass died years ago, and the defendant, James W. Ousley, fully administered his personal estate, and was discharged from his office by the Probate Court in 1882, and nothing appears to show the invalidity of the discharge. D. L. Campbell, the other surety, died on the 20th of October, 1893.
On the 16th of February, 1893, his honor, Judge Ernest Gary, made an order referring all issues of law and fact to W. J. Hanna, Esq., as special referee. The special referee held references on the 25th of April, the 7th and 25th days of August, 1893, when the reference was closed, and arguments made by the attorneys. At the February term of the' court, 1894, his
Plaintiffs amended their complaint as follows: “I. That they adopt all the allegations of their former amended complaint in this case on file in this cause, and mate the same a part of this complaint, and crave reference thereto as often as may be necessary. II. That in addition to the allegations therein contained, they allege that since the institution of this action, D. L. Campbell has departed this life testate, and the defendant, Allan Campbell, has proved the will of D. L. Campbell and qualified as his executor, and has been made a party to this action by the service of a summons, pursuant to the order of this court.” The defendant, Allan Campbell, after adopting the defences set up in the answer of D. L. Campbell, his testator, alleged as further defence: “I. That Duncan L. Campbell, his testator, departed this life on the 20th day of October, A. D. 1893. II. That this defendant, on the 16th day of February, 1894, filed in the Court of Probate for Chesterfield County the last will and testament of his testator, Duncan L. Campbell, deceased, and on said day had the same probated, and duly qualified thereon as executor of said estate. III. That the plaintiff has no right or authority to commence an action against him as executor of the estate of Duncan L. Campbell, for the recovery of their claim against the estate of his testator, until after the lapse of twelve months from the 16th day of February, 1894.”
Without further testimony or any further order of reference, the referee filed, on the 22d of August, 1894, his report. The defendant, Allan Campbell, filed exceptions to said report. The case came on to be heard at the September term of the court, 1894, before his honor, Judge Norton, whose decree will be incorporated in the report of the case.
The defendant, Allan Campbell, was simply substituted upon the record in the place of his testator, and does not, therefore, occupy the position of one who has been made a party defendant claiming independent rights, as in the case of Ex parte Maurice, 24 S. C., 178. Section 142 of the Code provides: “No action shall abate by the death * * * of a party * * * if the cause of action survive or continue. In case of death * * * of a party the court, on motion at any time within one year thereafter, * * * may allow the action to be continued by or against his representative or successor in interest.” The latest judicial utterance of this court in construing this section is found in the case of Dunham v. Carson, 42 S. C., 383, the rubric of which [in 20 S. E. Rep., 197,] is as follows: “Where, on the death of a defendant, in an action to foreclose a mortgage on land, her devisees are, by order, made parties defendant, it is error to provide in the order that they may answer the complaint generally, as the only question they can raise by answer is, whether they are the heirs or devisees of the deceased.” See, also, Lyles v. Haskell, 35 S. C., 391. These exceptions are, therefore, overruled.
We come now to a consideration of the exceptions filed by the plaintiffs and Preston Quick, administrator, which are as follows: “1. Because the court erred in holding that a discharge by the judge of probate, and the lapse of six years thereafter before action brought on an obligation of the intestate, terminates the office of administrator, and there is no longer any administrator, and James W. Ousley could not be sued, under these circumstances, upon an obligation of his intestate. 2. Because the court erred in holding that the estate of Alexander Douglass was not represented in this cause, and that James W. Ousley was not a proper party to this cause. 3. Because the court erred in holding that a judgment could not be entered in the case against James W. Ousley, as administrator of Alexander Douglass, subject to the plea oí plene administravit. 4. Because the court erred in dismissing the complaint as against James W. Ousley, as administrator of Alexander Douglass.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.