Shea v. Starr

• Decision Date: 07 January 1913
• Citation: 76 N.H. 538,85 A. 788
• Parties: SHEA v. STARR et al.
• Court: New Hampshire Supreme Court

85 A. 788

76 N.H. 538

SHEA

v. STARR et al.

Supreme Court of New Hampshire. Hillsborough.

Jan. 7, 1913.

Transferred from Superior Court, Hillsborough County; Chamberlin, Judge.

Action by Julia F. Shea against William J. Starr and another, executors. Case transferred from the superior court on defendants' motion to dismiss and plaintiff's exception. Case discharged.

The action was entered in the superior court during the lifetime of the original defendant, James S. Brown, who duly appeared by counsel. Brown died prior to the May term, 1909; and during that term, on June 3d, at the request of the plaintiff, a writ of scire facias was issued against the defendants as executors of Brown's will, commanding them to appear at the September term of said court to answer in said action. The writ was duly served upon the executors on July 9, 1909, but was not returned into court until October 12, 1910, when it was filed in the original suit. At the September term, 1911, upon motion of the plaintiff, the defendants, not having appeared, were defaulted, and the damages were ordered to be assessed by a jury. Immediately thereafter the attorneys who had been counsel of record for Brown in his lifetime appeared for the executors, and moved that the default be stricken off, and that they have leave to appear specially for the purpose of contesting the jurisdiction of the court under the scire facias. At the January term, 1912, this motion was granted, subject to the plaintiff's exception. Counsel for the executors then moved that the action be dismissed because of the want of a proper return of the writ of scire facias, in that the writ was not filed in court after service until October 12, 1910.

Jones, Warren, Wilson & Manning and Michael J. Driscoll, all of Manchester, for plaintiff.

Branch & Branch, of Manchester, for defendants.

PARSONS, C. J. "Since 1844, actions pending at the death of the party have survived to his administrator, whether the cause of action did or not survive at common law. Laws 1844, c. 139; Gen. Laws, c. 198, § 16; Id. c. 226, § 12; Saltmarsh v. Candia, 51 N. H. 71. Sections 8 and 9 of chapter 191 of the Public Statutes introduced a time limit for appearance and issuance of a scire facias in pending actions for personal injuries. To that extent the law was changed." Piper v. Railroad, 75 N. H. 435, 442, 75 Atl. 1041, 1046. It is assumed that the present is an "action of tort for physical injuries to the person," since otherwise no question could arise; for all other actions of negligence survive without limitation. P. S. c. 191, § 14.

The limitations introduced by the sections cited require the abatement of such actions "unless the administrator of the deceased party, if the deceased was plaintiff, shall appear and assume the prosecution of the action before the end of the second term after the decease of such party, or, if the deceased party was defendant, unless the plaintiff shall procure a scire facias to be issued to the administrator of the deceased party before the end of the second term after the original grant of administration upon his estate." P. S. c. 191, § 9.

In this case, the defendant having died, the plaintiff within the time limited procured a scire facias to be issued to the defendant executors, returnable at the next term, which was duly served upon them in season to give them legal notice to then appear. "If an administrator, having been duly served with a scire facias, shall not become a party to a suit, judgment may be rendered against the estate of the deceased in the same manner as if he had become a party." P. S. c. 191, § 22. Accordingly, the executors having been duly served and not having become parties to the suit or appeared, the plaintiff at the September term, 1911, had them defaulted and moved for an assessment of damages by the jury. The defendants, in support of their motion to dismiss, do not claim that the scire facias was not duly issued or properly served, but contend that this compliance with the statute was unavailing because the writ of scire facias was not returned to the clerk's office at the term to which it was made returnable. The statute upon which the defendants rely is, as stated, a modification of existing law, and it does not provide as a condition for the survival of the action when the scire facias should be made returnable or returned. All that is required is that it be issued and served.

A scire facias is a judicial writ founded on some matter of record, as a recognizance, judgment, etc. 2 Tidd, Pr. 982. It is not an original, but a judicial writ—a writ of execution. 2 Sell. Pr. 187. While when founded upon a recognizance the proceeding is an original, when based upon a judgment, or issued for the purpose of bringing in new parties, the proceeding is not a new suit, but the continuation of an existing one. 2 Tidd, Pr. 983; Parker v. Willard, Smith, 212; State v. Poster, 7 Vt. 52, 53; Wright v. Nutt, 1 D. & E. 388; Underhill v. Devereaux, 2 Saund. 71. "Calling on the representative to become a party to such suit is not the commencement of a suit against him." Parker v. Willard, supra, Smith, 214.

As the issuance of the scire facias was not the institution of an action against the defendants, the rule of court (71 N. H. 675) forbidding the entry of the action upon the docket until the...