Lewis v. Outlaw
| Decision Date | 31 May 1799 |
| Citation | 1 Tenn. 140 |
| Parties | LEWIS AND LENOIR v. OUTLAW ET ALS. |
| Court | Tennessee Circuit Court |
In Equity.--Campbell, of counsel for the plaintiff, moved that the cause should be opened for final hearing.
Whiteside, for the defendant, objected, and observed that it was not in a state for hearing, on account of the death of one of the defendants, against whose representatives it had not been properly revived.
Upon examination of the orders taken in the cause, it appeared that two publications had been made in the “Knoxville Gazette” to revive the suit as against the heirs, who were infants, but no person had been appointed their guardian until this day, when Col. Outlaw, one of the defendants, applied, and was appointed. The counsel for the defendants insisted that the guardian should have time until next term to answer.
Overton, J., and Williams, commissioner, appointed, agreeably to the Constitution and laws, for the hearing of this cause.
Campbell, J., being one of the defendants, could not sit, and White, J., having been of counsel.
The consideration of this question involves points of much consequence in the practice; it will therefore be necessary to take a view of the law of England upon this subject, as particularly respects the practice in chancery. Agreeably to the practice in the courts of law in England, all suits abated by the death of either party; nor could they be revived by scire facias.
The cases in 1 Harrison, 76, 179 clearly show that all persons interested ought to be before the Court before proceeding to hearing or final decree. This could not be the case if complainants were to proceed to hearing after the death of a defendant without the representative being made a party. An infant can not defend by himself but by guardian,--he can not be considered a party unless a guardian be appointed.
It is the duty of courts of justice to take care of the interests of infants, who, from weakness both of mind and body, are incapable of taking care of themselves; 1 Har. 47, 48. The practice of the Court of Chancery in England is, upon the death of either plaintiff or defendant, to file a bill of revivor against the representatives of the deceased.a1 This appears as requisite upon the death of the plaintiff or defendants. Upon the death of either party, the interest in the subject in dispute is changed. It is no longer in the deceased, but is transmitted to the heir, executor, or administrator, as the case may be. As their interest is about to be affected, and their rights bound by the determination of a suit, natural justice requires that they should be in court in a legal manner, and have an opportunity to be heard. After a bill of revivor, and upon the issuing and service of a subpoena, it is usual in the English practice to move for an attachment against an infant defendant, which however is not executed, but the body of the infant is brought into court by an officer, upon which, if none of the relations of the infant applies to be appointed guardian, the Court appoints some fit person to act as guardian, in whose name the infant is to answer the bill. The answer is sworn to by the guardian, and not the infant. In forensic proceedings, in all countries, a day is given to a defendant to plead or answer. We are, therefore constrained to think that the guardian after his appointment should have a reasonable time to plead to or answer the complaint exhibited.
It would be nugatory to make a party without allowing sufficient time to answer.d1
The first of our statutes upon the subject of abatement is 1783, c. 2, section 2, “and no appeal in any cause or court whatsoever shall be abated by the death of either the plaintiff or defendant, but may be proceeded upon by application of the heirs, executors, administrators, or assigns of either party.”
All other suits are put upon the same footing with appeals by the Act of 1786, c. 14, section 1, which enacts “that in future it shall and may be lawful for the heirs, executors, administrators, or guardians to carry on every suit or action in courts after the death of either plaintiff or defendant, and may be proceeded on by application in the same manner as appeals are carried on under an act passed the last session of assembly,” &c.
It is further provided “that where a term of the Superior Court of law or the Court of Equity, or a session of the Court of Pleas and Quarter Sessions shall intervene between the death of any plaintiff or defendant and qualification of the executors or administrators of such deceased plaintiff or defendant, the intervention of such term or session shall not work any abatement or discontinuance of such suit;” 1789 c. 57, section 7. It has been uniformly considered by our courts that these acts authorize only the revival of such suits as did not die with the person, agreeably to the principle of the common law; or such as had arisen ex contractu, and not such as arose ex delicto, where the maxim actio personalis moritur cum persona applies.
It seems clear that all revivals to comport with the...
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