Holman v. Clark

• Decision Date: 30 June 1914
• Docket Number: 297
• Citation: 65 So. 913,11 Ala.App. 238
• Parties: HOLMAN v. CLARK.
• Court: Alabama Court of Appeals

65 So. 913

11 Ala.App. 238

HOLMAN v. CLARK.

No. 297

Court of Appeals of Alabama

June 30, 1914

Appeal from Circuit Court, Dale County; W.O. Mulkey, Special Judge.

Action by A.S. Clark against J.D. Holman. Judgment for plaintiff and defendant appeals. Reversed and rendered.

H.L Martin, of Ozark, for appellant.

J.E.Z Riley, of Ozark, for appellee.

WALKER, P.J.

In April, 1910, the court below made the following order:

"The death of the plaintiff being suggested to the court, on motion it is ordered by the court that leave be granted for the revival of this suit in the name of the personal representative of said plaintiff, A.S. Clark, at this term."

At each of the succeeding six terms of the court an order continuing the cause was made; each of the orders, except one of them showing a continuance by agreement. The record does not indicate that during this time the name of the deceased plaintiff's personal representative was made known to the court or that she appeared in the suit in person or by attorney as a party to it. In July, 1913, the defendant entered a motion that the suit be abated because more than 12 months had elapsed since the death of the plaintiff; the motion alleging:

"That one Mattie Clark has for more than two years been administratrix of the estate of A.S. Clark, deceased, having been duly and regularly appointed by the probate court of Henry county, Ala., and is still serving as the administratrix of said estate."

On the hearing of the motion, of which the named administratrix had due notice, the truth of its allegations was admitted. The motion was overruled, and the same disposition was made of a motion, subsequently made by the defendant, to strike the suit from the docket because it had not been revived within the time allowed by law.

The order above quoted did not purport to be one reviving the suit in the name of the legal representative of the deceased plaintiff. It merely granted leave to revive. More than two years elapsed without anything appearing in the record to indicate that the administratrix chose to avail herself of this leave. The order merely granting such leave did not have the effect of making an unnamed legal representative of the deceased plaintiff a party to the suit. Ex parte Sayre, 69 Ala. 184. So long as such legal representative failed to become a party to the cause it remained unrevived. When the motion to abate was made, the ground stated...