Gibbs v. Belcher

• Decision Date: 30 April 1867
• Citation: 30 Tex. 79
• Parties: E. PHILIP GIBBS v. JOHN BELCHER.
• Court: Texas Supreme Court

30 Tex. 79

E. PHILIP GIBBS

v.JOHN BELCHER.

Supreme Court of Texas.

April, 1867.

A cause of action, arising from a personal injury to a party, at common law, dies with the party, and with it the remedy. Actio personalis moritur cum persona. Pas. Dig. art. 18, note 229; 12 Tex. 11.

The rule in the case of Taney v. Edwards, 27 Tex. 224, was questioned in Cherry v. Speight, 28 Tex. 503, and in future it will be regarded as overruled. 27 Tex. 224;28 Tex. 503.

Where the judgment was against a defendant for assault and battery, and he prosecuted error, and, pending the case in the supreme court, the plaintiff in the judgment died, and now the defendant below, who was plaintiff in error, moved to dismiss, because the action was personal, the motion was overruled. 31 Tex. 608.

The 38th and 39th sections of the act to regulate proceedings in the district court provide for making parties in the district court whenever the cause of action survives. Pas. Dig. arts. 6, 7, notes 224, 225. Neither of these sections embrace a tort.

The 37th section provides, that in all suits, where either party shall die between verdict and judgment, the judgment shall be entered as if both parties were living. Pas. Dig. art. 5, note 223. This section is not confined, like 38 and 39, to causes of action that survive.

The amendatory act of 5th February, 1843, is applicable alike to all cases in which one of the parties dies after judgment. It remains a valid and subsisting claim, and a mode of collection is given in the act. Pas. Dig. arts. 13, 14, notes 227, 228.

The death of a party to a personal action, after judgment, did not have the effect of vacating or opening the judgment; but it survived in favor of or against the representative of the deceased.

A writ of error removes a cause to the supreme court, but does not vacate or open the judgment, nor operate so as to stay an execution on the judgment, unless security is given and supersedeas sued out. Pas. Dig. art. 1495, note 587.

The 15th section of the act to regulate proceedings in the supreme court reads as follows: “All writs and process issuing from the supreme court shall bear the test of the chief justice of said court, and be under the seal of said court, and signed by the clerk thereof, and may be directed to the sheriff, or other proper officer, of any county in the state, and shall be by such officer executed according to the commands thereof, and returned to the court from which they emanated; and whenever such writ or process shall not be executed, the clerk of said court is hereby authorized and required to issue another like process or writ, upon the application of the party suing out the former writ or process, to the same or any other county; and when any person, plaintiff or defendant, in any suit pending in said court, shall die, it shall be lawful for the clerk of the said court, during the recess of the court, upon application by petition, to issue proper process to enable the court to proceed to a final judgment or decree, in the name of the representative of such deceased person.” Pas. Dig. art. 1573, note 608. This section makes no distinction between causes of action, but embraces all judgments.

The writ of error is a new action, brought in a superior court, founded upon a judgment of an inferior court, for the purpose of supervising it and correcting any error there may have been in the proceedings of the court below.

Our statute changes the common law practice (which is fully discussed), and makes the writ of error applicable to all cases.

The judgment merges the cause of action, and becomes a debt of record, which survives to the legal representative.

ERROR from Wood. The case was tried before Hon. CHARLES A. FRAZER, one of the district judges.

The judgment was rendered at the May term, 1860, and the writ of error issued on the 7th of August, of that year, and was returned to the Tyler session of 1861, and the transcript was filed 25th April, 1861.

The facts of the case are sufficiently set forth in the opinion.

Robertson & Herndon, on the 1st April, 1867, for plaintiff in error, filed the following motion, upon which the opinion was given:

“And now comes the said appellant by attorney in this cause, and suggests the death of appellee, John Belcher, in this cause, and moves that this cause abate; because, by inspecting the record, it will appear that this was a suit by John Belcher, appellee, to recover damages for an assault and battery made on him by the said appellant; and that the said suit does not survive the death of appellee. Pas. Dig. p. 96, notes 223, 224; Taney v. Edwards, 27 Tex. 224; 1 Ch. Plead. 68.”

J. H. Parsons, on the 11th of the same month, appeared for Obadiah Belcher, the administrator of the defendant in error, made the administrator a party, and suggested delay; but made no mention of the motion.

SMITH, J.

Belcher sued Gibbs for an assault and battery, and recovered judgment for $30 and costs of suit. Gibbs sued out this writ of error in this cause, and after that Belcher died, and Gibbs now moves the court to abate the suit and dismiss the cause, for the reason that the cause of action was a tort or an injury to the person of Belcher, and did not survive in favor of his representative.

A cause of action arising from a personal injury to a party in no way connected with a contract at common law dies with either party, and with it the remedy. Actio personalis moritur cum persona. And we know of no statute that changes this rule in respect to this class of actions. 12 Tex. 11. And if the party, Belcher, had died before the verdict in this cause, it must be admitted that the suit would necessarily have abated, and there would have been no survivorship of the cause of action; it would have died with the person injured. But we are not satisfied that the same rule obtains when the party dies after the rendition of a judgment in the district court. It was held in the case of Taney v. Edwards, at Austin term, 1863, 27 Tex. 224,that an appeal, in actions of this character, had the effect of opening the judgment below; and, upon the death of either party pending the appeal, the cause abated, and the judgment did not survive. In the case of Cherry v. Speight, decided last term at Austin, 28 Tex. 503, the correctness of this opinion was questioned and held open for future investigation. And from the examination we have been enabled to give the subject here, we are of opinion that it was incorrect, and in future will be regarded as overruled.

The case of Cox v. Windfield, 18 Ala. 738, was an action for crim. con. Windfield recovered judgment in the lower court for $2,000, and Cox sued out a writ of error to the supreme court, and died before errors were assigned. The question was, whether the writ abated or could be revived and prosecuted in the name of his administrator. We will copy the language of Mr. Justice Chilton, in the opinion, to wit:

“It is conceded that at the common law a writ of error abated where the plaintiff died before errors assigned, and that our statute only allows the personal representative to be made a party for the purpose of prosecuting the writ in case the cause of action by law survives. It is insisted in this case by the defendant in error that the original cause of action does not survive. We readily grant that, had Cox died before final judgment in the court below, the suit would have abated by reason of his death. But a final judgment was rendered against him.

The action here terminated, and it is very certain that his death, after the rendition of such judgment, did not annul it, but, on the contrary, it is conceded by the counsel that it could be enforced against the estate of the decedent, and that a scire facias would lie to revive it against his personal representatives. Now, our law would be singularly defective, if a final but erroneous judgment could only be reversed by the defendant while living, thus making his death operate as a...