Penney v. Speake

• Decision Date: 18 October 1951
• Docket Number: 8 Div. 563
• Citation: 256 Ala. 359,54 So.2d 709
• Parties: PENNEY et al. v. SPEAKE.
• Court: Alabama Supreme Court

Page 709

54 So.2d 709

256 Ala. 359

PENNEY et al. v. SPEAKE.

8 Div. 563.

Supreme Court of Alabama.

Oct. 18, 1951.

Eyster & Eyster, Decatur, for appellants.

Julian Harris and Norman W. Harris, Decatur, for appellee.

LAWSON, Justice.

Plaintiff below, H. R. Speake, on October 14, 1946, filed his suit in the circuit court of Morgan County against J. E. Penney and Kate M. Penney, claiming the sum of $1,500 with interest, which he alleged to be due him as a result of his effort to sell certain real estate situate in Decatur, Morgan County, which belonged to the defendants.

Summons was issued by the clerk of the court on the day suit was filed, but service was never had on either defendant due to their illness.

The defendant Kate M. Penney died testate on or about July 17, 1947. On November 12, 1947, plaintiff made known to the court that Kate M. Penney had died and that Paul M. Penney was appointed executor by the probate court of Jefferson County on August 19, 1947. Plaintiff prayed that the cause be revived against Paul M. Penney, as executor, and that a citation issue to him requiring him to appear within thirty days and defend the cause in the place of Kate M. Penney, deceased. On the same day, November 12, 1947, the trial court made an order requiring the clerk to issue a citation to Paul M. Penney, as prayed. The citation was issued on November 12, 1947, and was served on Paul M Penney on November 17, 1947. No copy of the summons and complaint was served on Paul M. Penney.

On May 21, 1948, Paul M. Penney, as executor of the will of Kate M. Penney, filed his motion to quash the citation served on him on November 17, 1947, on three grounds, viz.: (1) that at the time of the death of Kate M. Penney she had not been served with a copy of the summons and complaint; (2) for that the cause has not been revived against movant as executor of the will of Kate M. Penney; (3) because no copy of the summons and complaint has been served upon movant as executor of the will of Kate M. Penney.

On July 28, 1948, plaintiff made known to the court that the defendant J. E. Penney died testate on or about May 17, 1948, and that Paul M. Penney and the Birmingham Trust National Bank were appointed executors by the circuit court of Jefferson County, to which court the administration of the estate of J. E. Penney, deceased, had been removed. Plaintiff prayed that citation issue to the said executors requiring them to appear within thirty days and defend the cause in the place of J. E. Penney, deceased. On the same day, July 28, 1947, the trial court made an order requiring the clerk to issue a citation to the same executors as prayed. The citation was issued on July 28, 1947, and was served on executors on August 2, 1948. No copy of the summons and complaint was served on the executors of the estate of J. E. Penney, deceased.

On August 17, 1948, the executors of the estate of J. E. Penney, deceased, namely, Paul M. Penney and the Birmingham Trust National Bank, filed a motion to dismiss them as defendants, assigning grounds substantially the same as those set up in the motion to quash filed by Paul M. Penney, as executor of the estate of Kate M. Penney.

On October 26, 1948, without acting on either the motion to quash filed by Paul M. Penney, as executor of the will of Kate M. Penney, deceased, or the motion to dismiss filed by Paul M. Penney and the Birmingham Trust National Bank, as executors of the will of J. E. Penney, deceased, the trial court entered an order which reads in part as follows: 'It is therefore considered, ordered and adjudged that this cause be and the same is hereby revived against Paul M. Penney, as executor of the will of Kate M. Penney, deceased, and against Paul M. Penney and Birmingham Trust National Bank, a corporation, as executors of the will of J. E. Penney, deceased.'

Thereafter on November 12, 1949, the trial court overruled the motions to quash and dismiss, to which we have heretofore referred. To this action of the court the executors separately excepted.

After such motions were overruled, the executors, who were sought to be substituted as parties defendant, filed a plea in abatement, which averred in substance that the cause was not at issue as to them because no summons and complaint was ever served on Kate M. Penney or J. E. Penney prior to their death and that since their death no summons and complaint has ever been served on their executors. Plaintiff's demurrer to this plea was sustained.

Thereupon, on November 12, 1949, the executors filed their plea setting up the statute of nonclaim of six months, § 211, Title 61, Code 1940, averring in substance that the court never obtained jurisdiction of Kate M. Penney and J. E. Penney because no summons and complaint was ever served upon them and further alleging that the plaintiff did not, within a period of six months after the appointment of the personal representatives of the respective estates, file a verified claim and that no summons and complaint was ever served on the executors. Plaintiff's demurrer to this plea was sustained.

Thereafter the defendants, the executors, filed their plea of the general issue in short by consent in the usual form.

The case came on for trial on November 21, 1949, and resulted in verdict and judgment in favor of the plaintiff and against the defendants in the sum of $1,813.13.

On December 15, 1949, the defendants filed their motion for a new trial, which was continued from time to time. Upon the hearing of the motion for new trial, plaintiff consented that the judgment be reduced to $1,791.40 because of an error made by the jury in computing interest. Judgment was entered in favor of the plaintiff for the sum of $1,791.40. The motion for new trial was overruled.

The executors appealed from the judgment and the ruling of the trial court on their motion for new trial.

Assignments of error 1, 2, 3, and 4 all relate to the action of the trial court in not granting the motions to quash and dismiss and in sustaining plaintiff's demurrer to the plea in abatement. These assignments of error are argued together in brief filed here on behalf of appellants. The only argument presented in support of appellants' assertion that these assignments of error should work a reversal is that neither the original defendants nor the executors, the appellants here, were ever served with a copy of the summons and complaint.

This suit was commenced by the filing of the complaint. § 43, Title 7, Code 1940, is as follows: 'The filing of the complaint, bill of complaint, or other statement of plaintiff's cause of action, in the office of the clerk or register of the circuit court, or other ministerial office of courts of like jurisdiction, shall constitute the commencement of suit.'

Although summons and complaint had not been seved on J. E. Penney and Kate M. Penney at the time of their death, the suit against them was pending at that time.

The cause of action survived. Hence the suit did not abate upon the death of the original defendants if there was compliance with the provisions of §§ 153 and 154, Title 7, Code 1940, which sections read:

' § 153. When actions do not abate by death; revivor in twelve months.--No action abates by the death or other disability of the plaintiff or defendant, if the cause of action survive or continue; but the same must, on motion, within twelve months thereafter, be revived in the name of or against the legal representative of the deceased, his successor, or party in interest; or the death of such party may be suggested upon the record, and the action proceed in the name of or against the survivor.'

' § 154. Revivor on death of defendant pending suit.--If the cause of action survive on the death of a defendant, suggestion thereof must be made of record, and the proper representative may voluntarily come in and make himself a party defendant, but if such representative does not come in and make himself a party, citation must issue to him, on his being made known, to appear within thirty days from the date on which the citation was served on him and defend, and after that time, the suit may be revived against him; but final judgment must not be rendered against a personal representative if he objects until after the expiration of six months from the grant of letters testamentary or of administration. This action shall abate, however, unless the personal representative is brought in and made a party within twelve months after the death of the defendant.'

There is no requirement in either of the sections above quoted that in order to revive, a copy of the summons and complaint must be served on the party sought to be substituted. The manner of obtaining jurisdiction of the personal representative of a deceased defendant is to cite him to appear. Walker v. English Adm'r, Ala.Sup., 53 So.2d 733; Waddill, Ex'r v. John, Guardian, 48 Ala. 232, 237. In the case last cited, it is said: 'The manner of obtaining jurisdiction of the personal representative of a deceased defendant is to cite him to appear at the next term of court and defend. Revised Code, § 2544 [Code 1940, Tit. 7, § 154]. This citation, called a scire facias prior to the Code, and commonly so called since, is perhaps not technically such. It must, however, be considered as a mesne process to be issued from the court, and to contain the essential qualities of a writ to be served on the party, thereby summoning him to appear in court to hear the complaint against him. These essential qualities are, that it must be signed and tested by the clerk, and directed to the sheriff. It must describe the court properly, have proper parties and contain a proper cause of action. 3 Chit.Gen.Prac. 163; Nabors v. Nabors, 2 Port. 162; Revised Code, §§ 2559, 2560 [Code 1940, Tit. 7, §§ 183, 184]. When as in this case, the citation is merely a continuation of a pending suit, and its only purpose is to bring the party into court, where he...