Akers v. Akers

• Decision Date: 31 December 1885
• Citation: 84 Tenn. 7
• Parties: George F. Akers v. Albert Akers.
• Court: Tennessee Supreme Court

84 Tenn. 7

George F. Akers

v.Albert Akers.

Supreme Court of Tennessee.

December Term, 1885.

FROM DAVIDSON.

Appeal in error from the Circuit Court of Davidson County. FRANK T. REID, J.

SMITH & ALLISON for George F. Akers.

E. I. GOLLADAY, JOHN V. WRIGHT and SAMUEL WATSON for Albert Akers.

COOKE, J., delivered the opinion of the court.

The defendant in error, Albert Akers, recovered a judgment in the circuit court in an action for libel, against George F. Akers, who appealed in error to this court. Pending the appeal the plaintiff in error, George F. Akers, died. Sci. fa. has been issued and served upon his personal representative, requiring him to show cause why the case should not be revived against him. To this the personal representative has pleaded that the action against his testator was for libel, which was a wrong, affecting the character of the plaintiff below, and consequently there can be no revivor against him as the personal representative of the decedent.

To this plea there is a demurrer, the cause assigned being that the tort, which was the original foundation of the action, was merged in the judgment of the circuit court and thus became a debt, and the appeal in the nature of a writ of error only had the effect to suspend, but did not vacate the judgment below.

The question thus raised is whether or not, in the present attitude of the case, there can be a revivor against the personal representative of the deceased party against whom the judgment was recovered below, or whether the cause or the appeal must abate?

That this was a personal action, which by the rule of the common law, died with the person, and that it is expressly excepted out of the provisions of section 2846 of the Code, is not questioned, and the only question is, has the character of the demand been so changed by the recovery of the judgment in the circuit court, as to take it out of the common law rule above cited?

This rule applied to all torts or personal actions, until modified by the provision of the section of the Code above cited, which confined it to actions for wrongs affecting the character of the plaintiff. In the case of Kimbrough v. Mitchell, 1 Head, 540, which was a personal action for an assault and battery, and which under the rule above referred to, also died with the person, the plaintiff had, as in this case, recovered a judgment against the defendant in the circuit court, the defendant had appealed, and, pending the appeal in this court, had died, and an application to revive against his personal representative was resisted upon the identical grounds here taken, and it was held that in the attitude of the case, as then presented, the principle was not applicable, and the revivor was allowed. Judge McKinney, delivering the opinion of the court, said: “By recovery in the lifetime of the injured party, the claim for damages was merged in the judgment, and became a debt, with which the personal representative was chargeable. The demand being thus impressed with the character of a debt, it is clear that it is not only the right, but likewise the duty, of the personal representative to insist upon a revivor.”

That case had been determined in the circuit court before the adoption of the Code, and the principle there announced as then applicable to an action for assault and battery, is still applicable in all its force to the case now under consideration. The learned judge, in that case, further said: “The position is altogether mistaken, that the judgment is annulled by the removal of the cause into this court, and proceeds from losing sight of the distinction between a simple appeal and an appeal in the nature of a writ of error. The latter merely suspends the judgment of the inferior court, and does not annul it, and consequently, if the appeal in error is abated or dismissed, the judgment below is left unimpaired and in full force.”

The principle decided in this case was cited approvingly in the case...