85 A. 788 | N.H. | 1913
"Since 1844, actions pending at the death of the party have survived to his administrator, whether the cause *539
of action did or did not survive at common law. Laws 1844, c. 139; G. L., c. 198, s. 16; Ib., c. 226, s. 12; Saltmarsh v. Candia,
In this case, the defendant having died, the plaintiff within the time limited procured a scire facias to be issued to the defendant executors, returnable at the next term, which was duly served upon them in season to give them legal notice to then appear. "If an administrator, having been duly served with a scire facias, shall not become a party to a suit, judgment may be rendered against the estate of the deceased in the same manner as if he had become a party." P. S., c. 191, s. 22. Accordingly, the executors having been duly served and not having become parties to the suit or appeared, the plaintiff at the September term, 1911, had them defaulted and moved for an assessment of damages by the jury.
The defendants, in support of their motion to dismiss, do not claim that the scire facias was not duly issued or properly served, but contend that this compliance with the statute was unavailing because the writ of scire facias was not returned to the clerk's office at the term to which it was made returnable. The statute upon which the defendants rely is, as stated, a modification of existing law, and it does not provide, as a condition for the survival of the action, when the scire facias should be made returnable or returned. All that is required is that it be issued and served.
A scire facias is a judicial writ founded on some matter of record, as a recognizance, judgment, etc. 2 Tidd. Pr. 982. It is not an original, but a judicial writ — a writ of execution. 2 Sell. Pr. 187. *540
While when founded upon a recognizance the proceeding is an original, when based upon a judgment, or issued for the purpose of bringing in new parties, the proceeding is not a new suit, but the continuation of an existing one. 2 Tidd. Pr. 983; Parker v. Willard, Smith N.H. 212; State v. Foster,
As the issuance of the scire facias was not the institution of an action against the defendants, the rule of court (
Though for some purposes a scire facias is in the nature of an original proceeding, yet when used merely to call in other parties it is not in principle more than an order of notice. It is so regarded in the statute. Section 11, chapter 222, Public Statutes, provides: "No action shall be abated by the plea that there are other plaintiffs or defendants who ought to be joined therein, but such persons may be made parties . . . and may be summoned by scire facias, or notified by publication, as the court may order." Its *541 purpose is simply to call the administrator into court. P. S., c. 191, s. 19.
Whether the plaintiff had the legal right to file the return one year after the return term, or whether after that time the court could properly have refused to permit it to be done, are questions not presented. The plaintiff complied with the statute by procuring the scire facias to be issued and serving it upon the defendants. As the court allowed the motion for default when made, it must be presumed it was found that the error of delay in filing the return, if there was one, was a technicality in procedure which justice did not require should defeat the action. Whether the defendants, by appearing and moving to strike off the default, waived the grounds of their motion to dismiss is not considered. Woodbury v. Swan,
If there has been delay in the prosecution of the suit, the defendants have themselves to blame. They could, as they were notified to do, have appeared two years before they did and have prosecuted the action as vigorously as they deemed wise. Whether justice required that under the circumstances the default should be stricken off and the defendants be permitted to contest the issue of liability was, as the plaintiff concedes in her brief, for the trial court. The plaintiff's exception is overruled. The delay in the return of the writ of scire facias did not necessarily operate as an abatement of the original action.
Case discharged.
All concurred.