15 Mo. 215 | Mo. | 1851
delivered the opinion of the court.
Johnson Ranney commenced an action by attachment, against the defendant Bostic, returnable to the Octoher term, 1848, in the circuit court of Washington county. The defendant was not served with the writ, he was not found, but certain lands were attached.
At the return term of the writ, the death of the plaintiff was suggested on the record, and the suit was afterwards revived in the name of his executor, William C. Ranney. After the suit was thus revived, the defendant entered his appearance by attorney and filed his plea (the statutory general issue,) and the cause was continued.
At the October term, 1849, the death of the defendant, Bostic, was suggested on the record and the cause was continued, and was regularly continued from term to term, until October term, 1850. At this last term the following motion was made:
“Ranney’s administrator against Bostic’s administrator. The defendant moves the court to order said suit to abate for the reason, that the third day of the second term has elapsed since the death of the defendant has been suggested, without a scire facias being issued to malee a party, M. Frissell, attorney.” This motion to abate, was continued until April term, 1851, when it was sustained and the suit ordered to abate. The plaintiff excepted to the action of the circuit court, and brings the case here by appeal.
From the bill of exceptions it appears, that there never was any administrator or executor of the defendant’s estate. That in November, 1850, Israel McGready, as public administrator, by order of the county court, took charge of the estate of the defendant Bostic; but this was after the lapse of the third day of the second term of the court from the term in which the death of the defendant had been suggested on record. There never was any scire facias sued out to make a party defendant in this case. During tire pending of the motion to have the suit abated, the plaintiff moved the court to allow and permit the public administrator to enter his appearance and defend the suit. It appearing that the public administrator was willing to do so without scire facias, if he was not entitled by law to have it abated. The court considering that it was the right of the public administrator to have the suit abated, overruled the plaintiff’s motion, made pending the motion of M. Frissell, attorney, to abate the suit.
The only question for our consideration involves the correctness of the action of the court in sustaining the motion to abate the suit. There was an action pending from October term, 1849, at which the defend
The statute directs and controls the manner in which suits may he revived: Practice at Law, art. V, sec. 18, p. 824, Digest 1845. This section declares, that “no scire facias for the purpose of substituting a person as plaintiff or defendant in any suit in the place of the original plaintiff or defendant, shall be sued out after the expiration of the third day of the second term next after the term in which the death or disability of the original party shall be stated upon record.”
It was by virtue of this provision, that the court sustained the motion to abate this suit. In this case there was no necessity for the motion t© abate, for by the statute above quoted, the scire facias could not issue after the lapse of the time mentioned, and the necessary consequences was, the abatement of this suit.
There is nothing in the point, that the motion of M. Frissell, attorney, was an appearance of the defendant’s administrator. There was no administrator, no executor of the defendant at that time that could appear; nor was there any thing in the form of that motion that could operate so as to make it act as an appearance by a representative of the deceased defendant, when, in reality, there was n© such representative in being at the time. We do not look upon the scire facias in this case as a new suit; its object, if one had been issued in time, could only ha.ve been to carry on the original action a mere continuation of the original suit.
The act of 1849, called “an act to reform the pleadings and practice in courts of justice in Missouri,” has nothing to do with this suit, as we conceive: it commenced before that act took effect, and it must proceed under the lav/ as it existed prior to the above act of 1849.
I therefore think the court committed no error in ordering this suit to ■abate, and such being the opinion of the other judges, the judgment below is affirmed.
