EJECTMENT—DEATH OF PARTY—SUGGESTION OP DEATH—AMENDMENT—APPEAL AND ERROR.
1. Defendant in ejectment died, and defendant's administrator was substituted. There was a demurrer to the complaint, and leave was granted to plaintiff to amend the order of substitution, making B., the devisee of deceased, a party defendant, provided such amendment be served on defendant's counsel. There was served on B. a note informing her that the action was pending; that she was the sole devisee thereunder of defendant; that by order of the court she had been made a party defendant; and thereafter there was served on her attorney a paper styled an "amended complaint, " in which the allegations of the original complaint were stated, and also that the defendant had died making her the sole devisee, and that by order of the court she had been made a party defendant. Held that, while the mode adopted was not the approved practice, the procedure was effectual to make the devisee a party defendant.
2. The paper, though styled an "amended complaint, " effected the object of the order that the devisee should be informed of the substitution.
3. Even if the order did not authorize the service of the amended complaint, such fact would not be ground for a motion to set aside the service of the amended complaint, the fact of service not being denied.
4. Where defendant in ejectment died, and an order was made making the devisee under her will of the land in dispute a party defendant, and a motion was made to set aside the service on the devisee of a paper styled an
"amended complaint, " which was intended to bring the devisee into court as a defendant, on appeal from a decree overruling such motion an exception that there was no evidence that the one sought to be made a party as the devisee was the devisee was premature, since that fact could be shown on the answer of the alleged devisee.
Appeal from common pleas circuit court of Lexington county; Ernest Gary, Judge.
Suit by Sue A. Shull against Julia A. Bradford. From a decree in favor of complainant, defendant appeals. Affirmed.
The following are the decree and grounds of appeal:
"Decree.
"This is an action brought for the recovery of a certain lot of land by plaintiff against one Mrs. Frances T. Caughman. During the pendency of the action, and before trial, the defendant, Mrs. Frances T. Caughman, died, testate. At the September term of court for 1898, his honor, Judge Gary, first passed an order making the administrator cum testa-mento annexo of Mrs. Frances T. Caughman a party defendant. The plaintiff went to trial, and, after plaintiff announced she rested her case, the defendant moved for a nonsuit, on the ground that the proof was not sufficient to sustain the action. This motion was refused. Then a demurrer was interposed, on the ground that the complaint did not state facts sufficient to constitute a cause of action. Judge Gary sustained the demurrer, with leave granted to the plaintiff to amend the order of substitution, making the devisee under the last will and testament of Mrs. Frances T. Caughman a party defendant, with the proviso that 'said amendment be served upon defendant's counsel within 20 days from the rising of the court.' ' It appears the defendant appealed to the supreme court from this order, and at the last spring term thereof the order of Judge Gary was sustained. 32 S. E. 301. Within 20 days from the rising of the court the plaintiff, under the order of Judge Gary, served upon defendant's counsel, Andrew Crawford, Esq., a copy of the amended complaint, in which Mrs. Julia A. Bradford, the alleged devisee of Mrs. Frances T. Caughman, deceased, had been substituted as the party defendant to said action; the plaintiff not only doing this, but taking the precaution to serve the said Mrs. Bradford with a copy of such amended complaint, and also a notice why she had been made a party, and at the same time notified her to come in and defend the action then pending. Upon the serving of such amended copy of the complaint Mr. Crawford served upon plaintiff's attorney a notice that he would move to set aside the service of such paper for four reasons, to wit: '(1) That there Is no authority of law for the issuing or serving of said paper, Mrs. Frances T. Caughman not having been dead for twelve months next preceding the serving of the same on the undersigned. (2) There is no evidence that Mrs. Julia A. Bradford is the devisee of Mrs. Frances T. Caughman, deceased, nor is there any authority for having served said paper on her in any capacity whatsoever. (3) The order of Judge Gary, under the terms of which said paper was served, did not contemplate or authorize the serving of an amended complaint. (4) There is no authority for serving said amended complaint on the undersigned.' After a full hearing of the matter, I am satisfied: (1) Judge Gary having granted the plaintiff leave to amend said proceeding by making the devisee under the will of Mrs. Frances T. Caughman a party defendant, I have no authority to review the same, and especially when it has already been reviewed and affirmed by our supreme court (2) As to the first point raised by defendant's counsel, under said notice of motion, section 142 of the Code is clearly against him. (3) As to the second position taken by counsel for motion, I hold that even if it was unnecessary to serve Mrs. Bradford, the alleged devisee, personally, with a copy of such amended complaint, such service could only be superfluous, and no ground to set the proceeding aside. (4) As to the third point raised by the notice of motion, I hold that Judge Gary could not have intended anything else but that the complaint should be amended by making the devisee of Mrs. Caughman the party defendant to said action, and when so amended a copy thereof to be served upon defendant's attorney. (5) As to the fourth position taken under the notice of motion, I have only to say the order of substitution passed by Judge Gary is in contradiction thereof. It is therefore ordered that said motion be overruled.
"James Aldrich, Presiding Judge."
"Grounds of Appeal.
"Mrs. Julia A. Bradford, through her attorney, Andrew Crawford, having heretofore, to wit, on 20th day of October, 1899, given notice of her intention to appeal to the supreme court from the decision of his honor, James Aldrich, presiding judge, now asks said court to reverse the order of said presiding judge, made in said cause, on the following grounds: (1) Because his honor should have sustained the motion, of date 8th November, 1898, and heard at the call of the case for trial at the October term, 1899, of the court of common pleas at Lexington, (a) for the reason that there was no authority, in law or practice, for the issuing and serving of the paper styled 'Amended Complaint, ' Mrs. Caughman, the original defendant, not having been dead for the twelve months next preceding the serving of the same; (b) because there was no evidence that Mrs. Julia A. Bradford was the devisee of said Mrs. Frances T. Caughman, nor was there authority for serving said paper on her In any capacity whatsoever; (c) because the order of Judge Gary, under the, terms of which said paper was served, did not contemplate or authorize the serving of an amended complaint; (d) because there was no authority for serving said amended complaint
on either said Mrs. Julia A. Bradford or her attorney. (2) Because there is no reason, in law or practice, authorizing his honor to predicate his action in overruling the motion aforesaid upon the declaration that the plaintiff took 'the precaution to serve the said Mrs. Bradford with a copy of such amended complaint, and also a notice why she had been made a party, and at the same time notified her to come in and defend the action then pending, ' when said precautionary course pursued by respondent has none of the elements of a summons or a complaint or an order amendatory of an order of substitution. (3) Because there is no way of bringing in a party to defend an action, or for any other purpose, where an original defendant dies, except by way of an order of substitution on motion, if the order be sought within twelve months; thereafter by supplemental complaint. (4) Becaus? the order of his honor, Judge Gary, of date 5th October,...
