Smith v. Jones

| Mich. | Apr 3, 1867

Cooley J.

The defendant in error brought suit in the court below against Ellsworth by attachment, which was returned not personally served. Ellsworth died pending the suit, and the cause afterwards proceeded to judgment against his administrator. The judgment not being satisfied, defendant applied to the court below for execution, which was awarded to him. The administrator thereupon brings the proceedings to this court to obtain a reversal of the order for execution. The question is solely one of statutory construction.

The statutes of 1846 — Oh. 19, §16 — provide that all actions pending against a person at the time of his death, may, if the cause of action survives, be prosecuted to final judgment, and if judgment is rendered against the estate, it shall be certified to the Probate Court, to be paid as other claims duly allowed against the estate.

Other sections provide for commissioners in the Probate Court to audit and allow claims; and section fifty-nine, before amendment, was as follows:

“If the appointment of commissioners to allow claims shall in any case be omitted, no person, having any contingent or other lawful claim against a deceased person, shall thereby be prevented from prosecuting the same against the executor, administrator, heirs, devisees or legatees, as provided by law, and in such case a claimant having a lien upon real or personal estate of the deceased, by attachment previous to his death, may, on obtaining judgment, have execution against such real or personal estate.”

This section is certainly very awkwardly drawn; the first reading might leave the impression that liens by attachment were only preserved in the cases where the appointment of commissioners had been neglected, so that the creditor was compelled to resort to suit. But as no attachment could be obtained after the party’s death, to give the section ■ this construction would nullify this portion of it; as demands already in suit did not go before the commissioners in any case, unless the plaintiff saw fit to withdraw his suit for the purpose. We think it the evident intent of this section to save the lien by attachment in any case where the party proceeded in his attachment suit to judgment; and that the words “in such case,” here employed, refer to the case of the party prosecuting his demand to judgment against the executor, etc., and not to the case of failure to appoint commissioners. We are not warranted in giving the statute a construction which would render any part of it nugatory, if any reasonable construction can be put upon it which would give effect to the whole.

The legislature of 1850 must have understood the section as we do. They amended it by providing that if no commissioners were appointed, the judge of probate should perform their duties. The remainder of the section then provided that “no person, having any contingent or other lawful claim against a deceased person, shall- thereby be prevented from prosecuting the same against the executor,” etc., “ as provided by law, and in • such case a claimant having a lien upon real or personal estate of the deceased, by attachment previous to his death, may, on obtaining judgment, have execution against such real or personal estate.” Now the cases provided by law, in which the creditor may prosecute his demand to judgment, are those in which suit was commenced before his death; and in these, if lien had been acquired by attachment, the section as it now stands clearly saves it.

The order of the Circuit Court is correct, and should be affirmed.

Campbell and Christiancy JJ. concurred. Martin Ch. J. did not sit.