Cherry v. Hardin
| Decision Date | 30 April 1871 |
| Citation | 51 Tenn. 199 |
| Parties | James M. Cherry v. Sarah A. Hardin, Adm'x et als. |
| Court | Tennessee Supreme Court |
Appeal in error from the judgment of the Circuit Court, March Special Term, 1869, FIELDING HURST, J.
T. P. Bateman, for plaintiff in error, cited 2 Saund. Pl. & Ev., 506, (3 Am. Ed.;) Act of 1836, c. 77; Code, 2846; Jones v. Littlefield, 3 Yer., 153;Griffith v. Beasley, 10 Yer., 437;Governor v. McManus, 11 Hum., 153. Commented on Ott v. Whitworth, 8 Hum., 494;Alsabrook v. Hathaway, 3 Sneed, 454.
McDougal & Patterson cited the Code, 2846; Kimbrough v. Mitchell, 1 Head, 541; Commented on 11 Hum., 152, which cited The People v. Gibbs, 9 Wend., 32, and Hambly v. Trott, Cowper, 371; Cited Code, 2747.
The judgment of the Circuit Court is erroneous. The action is trover, begun by the plaintiff against the defendants for the conversion by their respective intestates in their lifetimes of two mules, the property of the plaintiff. The declaration shows the death of intestates anterior to the commencement of the suit. To the declaration there are pleas of not guilty, and that the alleged trespassers were dead at the commencement of the suit. To the second plea is a demurrer, assigning for cause, 1st, “That the facts contained in said plea were well known to defendants and their attorneys when they filed their first plea, and if material, should have been then pleaded.” 2d, “That the death of Martin Hardin and W. R. Porter, after taking and converting said property to their own use, is no reason why their estates are not legally liable for the same.” 3d, “Said plea is in effect a demurrer.” A trial was had upon the plea of not guilty--verdict and judgment for the plaintiff, and an appeal in error to this Court. The demurrer was sustained. The pleadings are irregular--the declaration contains no maintainable cause of action, and should have been demurred to, or stricken from the files on motion. The pleas to the declaration tendered an immaterial issue, and hence did not cure any error or defect in the declaration. An action of trover can not be commenced and maintained against an executor or administrator. The act of 17th February, 1836, c. 77, transferred to the Code, section 2846, was not intended to authorize the institution of actions ex delicto against the representatives of deceased persons, but was simply meant to warrant a revivor against a personal representative, the suit having been commenced against the wrong doer in his lifetime; the terms of the acts are too plain to allow of doubt as to their meaning. It is insisted that by the case of Kimbro v. Mitchell, 1 Head, 540, the common law maxim, that “A personal right of action dies with the person,” is no longer applicable in this State. Although such is the exact language of Judge McKinney in that case, we can not concur in the general broad construction given to it in argument here. There the learned Judge was discussing alone the doctrine of revivor as suggested by our statutes, and presented in that case, and did not mean to be understood as applying the language used, to all cases. While, in some sense, practically, when a cause is properly brought before the courts, the maxim already quoted does not always obtain in Tennessee, being modified by our legislation, yet to avoid its application, regard must be had to the character of the action.
It is a principle of the common law that when an action arises ex delicto and the declaration imputes a tort done either to the person or property of another, and the person by whom the injury was committed dies, no action for such injury can be brought against his executor or administrator. In the case of Griffith v. Beasley, 10 Yer., 437, Judge Green, in commenting upon the common law principle just quoted, says: ...
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