Webster v. Hitchcock

11 Mich. 56 | Mich. | 1862

Christiancy J.:

So far as the bill seeks to revive the original cause of Hernán C. Palmer, against the defendants, which had become abated by his death, it was- entirely unnecessary. The order of July-24th, 1861, substituting the administratrix as complainant, of itself, operated as a revivor: and no actual amendment was necessary to give it that effect. But by the assignment of all her interest to the present complainant after the suit was so revived, the assignee became a necessary party complainant, and the suit could no longer be prosecuted in her name after the assignment should be brought to the notice of the Court: — Wallace v. Dunn, Walk. Ch. 416. If the assignment did not operate strictly as an.abatement of the suit, its effect was much the same, 'as it left no party complainant before the Court competent to prosecute it. The only mode in which the assignee, the present complainant, could revive or get the benefit of the suit, was by filing an original bill in the nature, of a bill of revivor and supplement, stating the bill and proceedings in the original suit, and the assignment to himself, and asking that the suit might be continued or revived for his benefit.

So far as the present bill is confined to these objects it was the necessary and proper course to give him the benefit of the former suit. In these respects the bill is not a mere supplemental bill, but an original bill in the nature of a bill of supplement and revivor: — Daniel’s Ch. Pr. 1666, 1685 to 1688, Ibid. 1697 and 1698; Sedgwick v. Cleveland., 7 Paige, 293. So far as it is based upon and recites the original cause, it is in the nature of a supplemental bill: so far as it seeks to revive or restore the original cause which had become defective by the assignment of the interest of the administratrix, it would seem to be in the nature of a bill of revivor: but so far as it relates to the assignment and the present complainant, it is entirely original.

Being an original bill it did not not require the previous leave of the Court to its filing: — Sedgwick v. Cleveland, supra; and very clearly it was not necessary to be filed by the solicitors in the original suit, as seems to have been supposed by the defendants’ solicitor.

Whether the present bill would be sufficient on demurrer, as an original bill in the' nature of a bill of revivor mnd supplement, we do not undertake to determine, nor shall we consider any question which might have been raised upon the demurrer; the appeal having been taken from the order striking the bill from the files. This order was erroneous: and as it was a final disposition of the •complainant’s.bill, we think it must be treated as a “final order” within the meaning of the statute, from which com» plainant was entitled to appeal. The order must be vacated, and the cause remanded to the Circuit Court in Chancery for further proceedings, and the complainant is entitled to his costs on the appeal.

The other Justices concurred.