Means v. Barnes

• Decision Date: 13 May 1913
• Parties: MEANS v. BARNES et al.
• Court: West Virginia Supreme Court

78 S.E. 665

72 W.Va. 512

MEANS v. BARNES et al.

Supreme Court of Appeals of West Virginia.

May 13, 1913

Submitted September 11, 1912.

Syllabus by the Court.

The common-law rule abating an action on the death of one of two or more joint defendants is not so altered by section 2 of chapter 127 of the Code of 1906 as to authorize revival of the action against the personal representative of the deceased joint defendant. Said section merely prevents total abatement and enables the plaintiff to keep the action alive against the surviving defendants.

Error to Circuit Court, Taylor County.

Action by Nathan H. Means against Joseph Barnes and others. Judgment for plaintiff, and defendant G. H. A. Kunst, administrator brings error. Reversed and remanded.

John L Hechmer, of Grafton, for plaintiff in error.

Warder & Robinson, of Grafton, for defendant in error.

POFFENBARGER P.

The plaintiff in error is the administrator of Adolphus Armstrong, deceased, whom the defendant in error sued jointly with one Joseph Barnes for the recovery of a debt. Pending the action, Armstrong died and there was an attempt to revive the action against his administrator, and an abatement of the action as to Barnes. An order of revival was entered on the motion of the plaintiff before a writ of scire facias was sued out. This, of course, availed nothing. Afterwards a further order was entered, reciting the alleged revival, and abating the action as to Barnes. After the scire facias had been served and returned there was another order of revival against the administrator, followed by a verdict and judgment.

At common law, a total abatement of the action was occasioned by the death of one of two or more joint defendants. This result is avoided by a statute (Code, c. 127, § 2) saying the action may proceed against the others, if the cause of suit survives against them. In Henning v Farnsworth, 41 W.Va. 548, 23 S.E. 663, the statute was relied upon as authorizing and requiring the suit to proceed against the surviving defendants and the personal representative of the deceased party. Declaring this position untenable, the court proceeded to interpret the statute fully. In so far as it says revival against the personal representative of the deceased party is not authorized, the opinion is only persuasive authority, since that proposition was not involved in the case. Its reasoning, however, is clear and sound in principle. By the common law, the death of one of two or more joint defendants occasioned a total and absolute abatement of the suit, and nothing further could be done in it against any of the parties. The statute, in terms giving only partial relief from this common-law rule, enables the plaintiff to keep the action alive against the surviving defendants. Beyond this its terms do not reach, and the court is powerless to add anything to them. This is...