59 So. 798 | Miss. | 1912
delivered the opinion of the court.
The appellee filed a bill against O. Randall and several others, praying for cancellation of title to certain real estate in Jackson county. A decree pro confesso was taken as to all defendants, except O. Randall. He filed an answer to the bill. On March 21, 1910, the appellee, complainant in the court below, in a motion suggested the death of O. Randall, and asked for issuance of process and revival of the cause against the appellant, Mrs. C. M. Randall, who is described as “widow and sole legatee of the property in controversy.” The motion was sustained, and process directed to be issued. On May 3, 1910, appellant was served with summons to appear and answer the bill. On November 21, 1910, a decree pro confesso was rendered 'against appellant, Mrs. C. M. Randall, and on November 28, 1910, the cause was set down for hearing on bill of complaint and decree pro confesso against appellant, and decree ren
Appellant contends that decree pro confesso could not be rendered while an answer to the original bill remained on file. It seems clear that the chancery court cannot grant a decree pro confesso while an answer or plea to the bill is pending. Smith v. Cozart, 45 Miss. 698.
In the case of Moore v. Hamilton, 44 N. Y. 666, it is said: “When an action is revived, the issue and proceedings are taken up at the point where death, marriage, or other devolution of the party to whom the-change is made left them. The new or substituted party takes the place of the former one, and the case is revived and proceeds in all respects as if the new party had been in the case from the beginning.” And it is decided in Woodhouse v. Lee, 6 Smedes & M. 161: “Where a defendant dies pending suit, and his administrators are brought in by scire facias, a plea filed during the lifetime of the intestate will be considered as the plea of the-administrator, if they omit to file a plea to the scire facias. ’ ’
A bill cannot be taken as confessed while an answer or a plea remains undisposed of. In this case, the answer filed by O. Bandall was still on file and undisposed' of when the decree pro confesso was rendered. According to the proceedings to revive the cause, made by theappellee herself, the appellant, Mrs. C. M. Bandall, was-the widow and sole devisee of O. Bandall, the defendant, and as such sole legatee owned the same interest in the-property in controversy which belonged to O. Bandall. She was entitled to the benefit of all pleadings and proceedings prior to the time when she was made a party to-the suit. Certainly the answer filed by her deceased husband could be used as defense for her. The answer-should have been disposed of in some way before the court rendered a decree pro confesso. It was properly-filed, and the court could not ignore it.
Reversed. Reversed.
