Green v. Watkins
| Decision Date | 08 March 1821 |
| Citation | 5 L.Ed. 256,19 U.S. 260,6 Wheat. 260 |
| Parties | GREEN v. WATKINS |
| Court | U.S. Supreme Court |
Mr. B. Hardin, for the defendant in error, moved to dismiss the writ of error in this case, which was a real action, upon a suggestion of the death of the demandant and plaintiff in error, pending the proceedings in this Court. He insisted that, at common law, the death of either party, any time before final judgment, would have abated the suit; ; that the judiciary act of 1789, c. 20. s. 31. made no provision for this case, since it merely extended to the case of the death of parties, in personal actions, before judgment; and that the statute 17 Car. II. c. 8. and the act of Kentucky, showed the sense of Parliament and the local legislature, that real actions abated by the death of the parties, before judgment, upon writ of error on judgments already rendered.
March 8th.
The preliminary question which has been argued at the bar, is, whether the writ of error in this case which is a writ of right, has abated by the death of the demandant, who is the plaintiff in error, pending the proceedings in this Court. There is a material distinction between the death of parties before judgment and after judgment, and while a writ of error is depending. In the former case, all personal actions by the common law abate; and it required the aid of some statute, like that of the thirty-first section of the Judiciary Act of 1789, ch. 20. to enable the action to be prosecuted by or against the personal representative of the deceased, when the cause of action survived. In real actions, the like principle prevails, for a still stronger reason, for, by the death of either party, the right descends to the heir, and a new cause of action springs up; and the plea is not, therefore, in the same condition as it was in the lifetime of the party.
But, in cases of writs of error upon judgments already rendered, a different rule prevails. In personal actions, if the plaintiff in error dies before assignment of error, it is said that by the course of proceedings at common law, the writ abates; but if, after assignment of errors, it is otherwise. In this latter case, the defendant may join in error, and proceed to get the judgment affirmed, if not erroneous; and he may then revive it against the representatives of the plaintiff. But in no case does a writ of error in personal actions abate by the death of the defendant in...
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Gerling v. Baltimore Ohio Co
...after verdict, judgment might be entered as of the preceding term. Hatch v. Eustis, 1 Gall. 160, 162, Fed. Cas. No. 6,207; Green v. Watkins, 6 Wheat. 260, 262. The rule has been modified in England and in this country by various statutes, with the object of avoiding the necessity of bringin......
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Howard v. Wilbur
...of a judgment in favor of the plaintiff in the lower court and pending a review proceeding does not abate the appeal. Green v. Watkins, 6 Wheat. 260, 5 L.Ed. 256; Coughlan v. Dist. of Col., 106 U.S. 7, 1 S. Ct. 37, 27 L.Ed. 74; Roberts v. Criss, 2 Cir., 266 F. 296, 11 A.L.R. 698. In such ca......
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Berggren v. Franke (In re Franke)
...of Marsh, 145 Neb. 559, 17 N.W.2d 471 (1945) ; Annot., 148 A.L.R. 1111 (1944).23 See, 148 A.L.R., supra note 22 ; Green v. Watkins, 19 U.S. (6 Wheat.) 260, 5 L.Ed. 256 (1821).24 See 148 A.L.R., supra note 22 ; Annot., 33 A.L.R.4th 47, § 2[b] (1984).25 See Westphalen v. Westphalen, 115 Neb. ......