McNutt v. State

• Decision Date: 04 December 1886
• Parties: MCNUTT, ADMX., v. STATE
• Court: Arkansas Supreme Court

2 S.W. 254

48 Ark. 30

MCNUTT, ADMX., v. STATE

Supreme Court of Arkansas

December 4, 1886

APPEAL from Lawrence Circuit Court, Hon. R. H. POWELL, Judge.

Affirmed.

John K Gibson for appellant.

The cause was not properly revived against appellant, nor was she served with notice or a copy of the order of revivor as required by secs. 5237-8-9-40--5-6 of Mansfield's Digest; 39 Ark. 126; 10 Ark. 254; 27 ib., 126, 298; 35 ib.,180.

Dan W Jones, Attorney-General, for appellee.

The court in reviving the cause complied with sections 5236-7-8 Mansfield's Digest. The death was suggested and the revivor was against the appellant, naming her capacity. The presumption is in favor of the regularity of proceedings. Here the cause was forthwith revived as is allowed by section 5239, Mansfield's Digest, when there is consent of parties. If there was consent, service of a copy of the order was unnecessary. The motion filed by appellant was a pleading and not evidence sufficient to remove the presumption of consent. It was not filed for that purpose, for "she enters her appearance in this cause only for the purpose of objecting to the process and service against her, and for nothing else."

OPINION

COCKRILL, C. J.

The question presented by the appeal relates only to the regularity of the proceedings had in reviving an action begun against Pleasant McNutt in his lifetime, against his representative after his death.

The statute points out three modes of procedure for reviving an action against an administrator of a deceased defendant.

First--The order of revivor may be made by consent of parties. Mans. Dig., sec. 5239.

Second--Where ten days' previous notice has been given to the administrator against whom the revivor is desired, of the intention to apply for the order, and no cause is shown against it, if six months have elapsed since the administrator qualified. Ib., 5240, 5245.

In each of these cases the order is absolute and the cause progresses against the new party from the date of the order.

The third instance is where the death of the defendant is suggested in the cause without previous notice to the party against whom the revivor is sought. In that event the order for revivor is not absolute as in the other instances, but is conditional upon his failing to show cause against it. Ib., secs. 5239, 5241. The order, after the suggestion of the death and of the names of the party to be proceeded against, is to the effect that the action be revived in his name as administrator, and proceed against him as such unless he shall show sufficient cause against the revivor at the next term of the court. Maxwell's Pl. & Pr., p. 692; Bates Plds., etc., p. 219, sec. 5151.

A copy of this order must be served upon the administrator as a summons is served, and the action will stand revived at the next term after legal service if no reason to the contrary is shown, before a default can be regularly entered. Dig., sec. 5239; Haley v. Taylor, 39 Ark. 104; Bates Plds., etc., sup., p. 221, sec. 13; Amyx v. Smith's Admx., 1 Metc. (Ky.), 529.

In the case before us a scire facias upon a forfeited bail bond had been served upon Pleasant McNutt at the suit of the state. At the next term of the court thereafter his death was suggested, and the court being satisfied of its truth, it was ordered that the cause be revived in the name of the appellant as the administratrix of his estate, and it was further ordered that process of summons issue against her as such. In obedience to this order, the clerk issued a writ commanding the sheriff to summon the administratrix to answer a suit begun against her intestate in his lifetime and revived against her as administratrix; and to warn her that upon her failure to answer, the original summons would be taken as confessed. The return upon this writ shows a proper service upon the administratrix. At the return term she appeared and moved to quash the writ upon the ground that the process should have been a copy of the order of revivor...