State v. Brooks

• Decision Date: 16 February 1918
• Citation: 200 S.W. 823
• Parties: STATE ex rel. WILKES et al. v. BROOKS.
• Court: Tennessee Supreme Court

200 S.W. 823

STATE ex rel. WILKES et al. v. BROOKS.

Supreme Court of Tennessee.

February 16, 1918.

Appeal from Circuit Court, Maury County; W. B. Turner, Judge.

Proceeding by the State, on the relation of Wilkes and others, to oust J. B. Brooks from the office of Justice of the Peace. Decree for defendant, and relators appealed. Defendant having died pending the appeal, his personal representatives move for an order to abate the cause. Motion allowed.

Thos. H. Peebles, of Columbia, for relators. J. H. Dinning and Hughes & Hughes, all of Columbia, for appellee.

WILLIAMS, J.

This is a proceeding brought under the Ouster Law (Thomp. Shan. Code, § 1166a37 et seq.) to have Brooks removed from the office of justice of the peace. The circuit judge decreed in favor of Brooks, and the relators appealed. Pending the appeal Brooks died, and his death has been suggested and admitted of record. Thereupon the attorney of record and the personal representatives of Brooks entered a motion for an order to abate the cause because of said death following final decree in the court below. The motion is resisted by the appealing relators.

The motion must be allowed. The ouster proceeding, there having been no suspension of Brooks from office, concerned a purely personal status — the qualification of Brooks to hold office. His death has effectuated the very end which it was the purpose of the proceeding to accomplish. Brooks has been removed from life by the Highest Power, and no decree that this court can render would be of any avail, since his office is already vacant.

It was held in Posey v. Posey, 113 Tenn. 588, 83 S. W. 1, that in a proceeding respecting the merely personal status of the one proceeded against, in an inquiry as to his lunacy, the cause of action did not survive the defendant's death, so as to make the proceeding revivable even to determine who should pay accumulated costs or for any purpose whatever. It was said that, if the cause of action itself does not survive, the suit necessarily abates upon that person's death.

Another instance is furnished by divorce cases where the marital status of two persons is involved. The death of either leaves no cause of action to persist. The suit therefore abates; and even in case of death after entry of a decree for divorce, merely, a writ of error will not lie to review the decree. McBee v. McBee, 1 Heisk. (48 Tenn.) 558.

The same is true of other cases which relate to personal status. Gantt v. Brown, 244...