Kimbrough v. Mitchell

• Decision Date: 31 December 1858
• Parties: ELIJAH A. KIMBROUGH v. JOHN MITCHELL.
• Court: Tennessee Supreme Court

38 Tenn. 539

ELIJAH A. KIMBROUGH

v.JOHN MITCHELL.

Supreme Court of Tennessee.

December Term, 1858.

FROM GILES.

This cause was tried at the December term, 1857, Martin, J., presiding. The defendant appealed in error. After the appeal, the plaintiff died, and his personal representative entered a motion in the Supreme Court to revive the suit in his name. The motion was resisted by the counsel for the defendant.

Thomas M. Jones, for the plaintiff in error; J. C. Walker, for the defendant in error.

McKinney, J., delivered the opinion of the court.

This was an action of trespass brought by Mitchell against the plaintiff in error, for a violent assault and battery committed by the latter upon the former.

The case was tried at the December term, 1857, of the Circuit Court of Giles, and a verdict and judgment rendered for the plaintiff for $437.50. From which judgment an appeal in error was prosecuted to this court by the defendant, Kimbrough.

Since the transfer of the suit to this court by the appeal in error, Mitchell, the defendant in error, died; and his death having been suggested, and admitted upon the record of this court, a motion is made, in behalf of his personal representative, to have the appeal in error revived in the name of the latter. The motion is opposed, upon the common-law maxim, that actio personalis moritur cum persona. This principle, we think, is not applicable to the case. By the recovery in the lifetime of the injured party, the claim for damages was merged in the judgment, and became a debt with which the personal representative was chargeable. The demand being thus impressed with the character of a debt, it is clear that it is not only the right, but likewise the duty, of the personal representative to insist upon a revisor.

The position is altogether mistaken, that the judgment is annulled by the removal of the case to this court, and proceeds from losing sight of the distinction between a simple appeal and an appeal in the nature of a writ of error. The latter merely suspends the judgment of the inferior court, and does not annul it; and, consequently, if the appeal in error be abated or dismissed, the judgment below is left unimpaired and in full force. Furber v. Carter, 2 Sneed, 1. The motion to revive is therefore allowed. It may be remarked that the common law maxim, that “a personal right of action dies with the person,” is no longer applicable in this State. By sec. 2846 of the Code, all actions founded...