Tucker v. Wilson

68 Miss. 693 | Miss. | 1891

Cajipbell, C. J.,

delivered the opinion of the court.

The suit begun by the complainants in 1870 was not abated by the death of the next friend by whom they sued, nor by the fact that the complainants attained their majority after suit brought. There was no necessity for a bill of revivor. All that was required Avas for them to appear in the suit as adults and prosecute it. The paper .exhibited by them as a bill of revivor was a very proper mode of bringing to the notice of the court their wish to appear in their own behalf as adults, and continue the suit begun in their behalf by their next friend, and it was fit that the defendants should be aroused from their long sleep, be advised of the purpose of complainants, and notified to answer the original bill, as ordered by the supreme court. The suit has been a pending suit all the time, as between the parties to it certainly, and is to be proceeded with as if a long time had not elapsed, and because of this no statute of limitations is apjfiicable. 1 Dan. Ch. Pl. & Pr. p. 77-8.

The sale of the land by the trustee, and its purchase by the defendant, made no change in the rights of parties. Mrs. Wilson, as a party, was bound to know that the blunder by Avhich ease No. 636 was dismissed did not in any manner affect the real case, No. 564, which was properly before the supreme court, and was disposed of by it by reversing the decree, overruling the demurrer and requiring an answer in forty days. If a stranger to the record could claim to have been misled by the mandate sent out after the dismissal mentioned, she could not.

The suit brought by the complainants in Union county, and which upon demurrer was dismissed, without prejudice, and the action of ejectment they instituted and dismissed, had no effect whatever on this suit. These fruitless efforts show a want of a proper conception of the right course for .the complainants to pursue for their advantage, but do not furnish a reason for precluding them fi’om proceeding in the right way they have now discovered and undertaken to pursue. The case is to be proceeded with just as if the judgment of this court rendered March 24,1873, had been promptly certified to the chancery court of Lee county. Mrs. Wilson will be allowed to answer the original bill as she might have done eighteen years ago. She might then have paid the costs of this court adjudged against her and co-defendants, and have speeded the cause, but having allowed it to remain in statu quo so long, she must now meet the case made by the bill. Reversed and remanded for an answer to the bill in thirty days after mandate filed elow.