Hill v. Brittain
| Decision Date | 07 January 1929 |
| Docket Number | 80 |
| Citation | 12 S.W.2d 869,178 Ark. 784 |
| Parties | HILL v. BRITTAIN |
| Court | Arkansas Supreme Court |
Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor affirmed in part and modified in part.
Decree affirmed in part and set aside.
Dean Moore & Brazil, for appellant.
C A. Holland and R. W. Robins, for appellee.
This is the second appeal in this case. On the first appeal the decree was reversed, and the cause remanded because the trial court rendered a judgment against the administrator of the estate of F. O. Stobaugh, deceased, in part for unmatured indebtedness, and decreed a foreclosure and sale of the property described in the mortgage to pay same. Reference is made to the case of Hill v. Brittain, 174 Ark. 1163, 299 S.W. 615, for a statement of the issues joined by the pleadings. It will be observed in reading the case that, during the pendency of the suit, F. O. Stobaugh, the owner and mortgagor, died, and the cause was revived in the name of R. E. Hill, administrator of Stobaugh's estate. It does not appear in the opinion when Hill was appointed administrator nor when the cause was revived. It is reflected by the transcript on this appeal that he was appointed sometime between April and December 2, 1925, and that the cause was revived against him by his consent on December 2 1925, within a year after his appointment. The transcript also reflects that the cause was not revived at that time nor since against the heirs of F. O. Stobaugh. On remand of the case, further testimony was taken, and the cause was retried on March 19, 1928, resulting in a judgment against appellant as administrator of the estate for the amount evidenced by the notes, and a decree of foreclosure and order of sale of the lands described in the mortgage to pay the judgment.
On April 17, 1928, appellant filed a motion to set aside the decree on the ground that the cause had not been properly revived in that it had not been revived against the heirs of F. O. Stobaugh, deceased. On the hearing of the motion the court refused to set aside the judgment against appellant as administrator of the estate, but set aside the decree of foreclosure and order of sale of the lands to satisfy the indebtedness.
Appellant contends that the trial court should have set the judgment against him as representative of the estate aside as well as the decree of foreclosure and order of sale of the lands, because appellee failed to revive the cause against the heirs of F. O. Stobaugh upon the suggestion of his death; and appellee contends that the decree of foreclosure and order of sale of the lands should have been permitted to stand.
The ruling of the court upon the motion was correct. The purpose of the suit against F. O. Stobaugh was twofold; first, to obtain a judgment against him for the indebtedness evidenced by his notes, and, second, to foreclose and sell the mortgage security to pay the judgment, if obtained. Upon Stobaugh's death, and during the pendency of the suit, the action for the indebtedness survived against his administrator, and the action to subject the security to the payment of the indebtedness survived against his heirs. Section 98 of Crawford & Moses' Digest provides:
"All actions pending against any person at the time of his death which by law survive against executor or administrator shall be considered demands legally exhibited against such estate from the time such action shall be revived, and shall...
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... ... 80, 233 S.W. 812; ... Thompson v. Lee, 174 Ark. 868, 296 S.W ... 706; Blake v. Thompson, 176 Ark. 840, 4 ... S.W.2d 514; and Hill v. Brittain, 178 Ark ... 784, 12 S.W.2d 869 ... In the ... latter case, it was held that on defendant's death ... pending a ... ...
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... ... 914; Id., 109 N.J.L. 580, 162 A. 909; ... Woods v. First Nat. Bank, 9 Cir., 16 F.2d 856; ... Thomas v. Barnes, 219 Ala. 652, 123 So. 18; Hill ... v. Brittain, 178 Ark. 784, 12 S.W.2d 869; Buff v ... Schafer, 157 Minn. 485, 196 N.W. 661; Bank of ... Prosperity v. Dominick et al., 106 ... ...
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