Ballance v. Samuel

• Decision Date: 31 December 1842
• Citation: 1842 WL 3777,4 Ill. 380,3 Scam. 380
• Parties: Charles Ballance, plaintiff in error,v.Jamison Samuel et al., defendants in error.
• Court: Illinois Supreme Court

3 Scam. 380

4 Ill. 380

1842 WL 3777 (Ill.)

Charles Ballance, plaintiff in error,

v.Jamison Samuel et al., defendants in error.

Supreme Court of Illinois.

December Term, 1842.

Error to Peoria.

Where one of the joint makers of a contract dies, his executor or administrator is discharged at law; and an action can be maintained only against the survivor. ^a

Semble, That the rule is different in relation to contracts which are joint and several.

Where a writ of attachment is sued out against two partners, and levied upon the real estate of one only, and he dies, the suit abates as to him, and cannot proceed as to the other defendant, for want of jurisdiction. Nor can a scire facias issue against the legal representatives of the deceased partner, because an action at law cannot be maintained against them and the survivor, as joint defendants.

Where the Circuit Court sustains a motion to dismiss an attachment against two partners, upon the ground that the property attached was the property of one of the defendants who has deceased, the Supreme Court will presume that sufficient evidence of that fact was produced, on the motion, unless the contrary appears. A party objecting to such motion for want of evidence of such fact, should spread the evidence upon a bill of exceptions, if he wish to avail himself of the objection in the appellate court.

It is not error to dismiss a suit by attachment, against two defendants, upon motion, where the defendant whose property was alone attached, has died, and the suit has abated as to him. Sed quere, Whether in such case a motion for an alias writ of attachment against the survivor, or against the garnishee, ought not to be sustained.

Jurisdiction to hear and determine a cause, in a suit by attachment, where no appearance is entered by the defendant, is obtained only by the service of the writ.

This cause was heard in the court below at the April term, 1842, before the Hon. Thomas Ford. The plaintiff brought the cause to this court by writ of error. The facts are stated in the opinion of the court.

Charles Ballance, pro se.

E. N. Powell and Wm F. Bryan, for the defendants in error:

“In case of joint contracts, or by partners, if one of the parties die, his executor or administrator is discharged at law, and the survivor alone can be sued: 1 Chit. Plead., 57, note 99; Foster et al. v. Hooper's Adm'rs, 2 Mass., 572; Atwell's Adm'rs v. Milton, 4 Hen. & Mun., 253; Chandler's Ex'rs v. Neal's Ex'rs, 2 Hen. & Mun., 124; Braxton's Adm'rs v. Hilyard, 2 Mun., 49.

So if one of several partners die, the action must be brought against the survivors. And if the executor of the deceased partner be joined, he may either plead the survivorship in bar, or give it in evidence, under the general issue: Collyer on Part., 427; Gow on Part., 172.

If the contract be several, or joint and several, the executor of the deceased may be sued in a separate action: 2 Burr, 1190. But he can not be sued jointly with the survivor, because one is to be charged de bonis testatoris, and the other de bonis propriis: 1 Chit. Plead., 57; Carth., 171; 2 Lev., 228; 2 Vin. Abr., 67-70.

The twenty-second section¹ of the ‘Act concerning attachments,’ only authorizes such proceedings as the plaintiff has instituted, ‘where the cause of action would survive to the executor or administrator.’ Here, in this case, the executor or administrator of Churchill Samuel was discharged at law, and the suit could not be revived by scire facias. It never could have been the intention of the legislature to change the rights and liabilities of parties in such cases. The plaintiff has clearly misconceived the law, in issuing the scire facias, and the court below did right in quashing it; for, if the suit had proceeded, the judgments against the parties would necessarily have to be different, and there would clearly be a misjoinder of action.”

TREAT, Justice, delivered the opinion of the court:

This was a proceeding by attachment, instituted in the Peoria Circuit Court, by Ballance against Jamison Samuel and Churchill Samuel, non-residents of this state. The declaration is in assumpsit, on a bill of exchange drawn on and accepted by Samuels, as partners. Notice of the pendency of the proceeding was given by publication, and the writ of attachment was levied on certain real estate. At the succeeding term, it was suggested by the defendants' counsel, and admitted by the plaintiff, that Churchill Samuel had died subsequent to the commencement of the suit, and an order was made by the court that the suit proceed against his co-defendant, Jamison Samuel, as survivor. A motion was then made to dismiss the suit, on the ground that the court had no jurisdiction, the real estate attached being the sole property of Churchill Samuel. A continuance was had, without a decision of the motion. Subsequently, and in vacation, the plaintiff filed an affidavit, showing the non-residence of the widow and heirs of Churchill Samuel, and a scire facias was issued against them, and notice thereof given, by publication. At the ensuing term, the defendants' counsel moved the court to quash the scire facias, and the motion was sustained. The motion to dismiss, for want of jurisdiction, was then heard and sustained, and judgment rendered against the plaintiff, for costs. To reverse this judgment, he prosecutes a writ of error, and the decision of the court, in quashing the scire facias against the heirs of Churchill Samuel, and in dismissing the suit as against Jamison Samuel, are assigned for error.

The twenty-second section of the attachment act,¹ provides that suits by attachment shall not abate by the death of either perty, where the cause of action survives to the executor or administrator, but the death being suggested on the record, the case shall proceed under the following regulations: Where the plaintiff dies, his executor or administrator may, within three months after obtaining letters testamentary, or of administration, cause a scire facias to be issued, giving notice of his intention to become a party to the suit, and upon proof of publication thereof, he may be made a plaintiff to the suit, which is thereafter to be prosecuted in his name. Where the defendant dies, a scire facias may issue, after the expiration of two months, to his legal representatives, notifying them of the pendency of the attachment, and of the intention of the plaintiff to proceed with the case, and upon proof of the publication thereof, the plaintiff is authorized to proceed with the attachment, as if such death had not taken place. Under this provision of the statute the plaintiff in attachment can not proceed by scire facias, to revive the suit against the representatives of the deceased defendant, unless the cause of action survives to his executor or administrator. The point presented by the first assignment of error, therefore, depends upon the inquiry, whether the cause of action in the present case survived against the personal representatives of Churchill Samuel. A reference to a few well recognized principles of the law, will fully determine the question. In the case of joint contracts, where one of the parties dies, his executor or administrator is discharged at law, and the surviving joint contractor can alone be sued. So, in cases of partnership, if one of the partners die, the action must be brought against the survivor. Upon the dissolution, by death, the surviving partner is alone liable to be sued at law, he being entitled to the whole of the effects of the firm, and responsible to the creditors for all of the demands against it. If the creditors of the firm seek to reach the assets of the deceased partner, they must resort to equity. The rule, however,...