State v. Pearce

• Decision Date: 10 February 1916
• Docket Number: 4 Div. 443
• Citation: 14 Ala.App. 628,71 So. 656
• Parties: STATE ex rel. KING et al. v. PEARCE, Judge.
• Court: Alabama Court of Appeals

71 So. 656

14 Ala.App. 628

STATE ex rel. KING et al. v. PEARCE, Judge.

4 Div. 443

Court of Appeals of Alabama

February 10, 1916

Rehearing Denied April 4, 1916

Petition by the State of Alabama, on the relation of H.B. King and others, for mandamus to require revisal of a suit in the names of relators as heirs at law of W.C. King, deceased, who was the original plaintiff. Petition denied.

W.C King began his suit in the circuit court against J.M. Deas and C.T. Harris, to recover of them the sum of $900, the basis of the suit being that they were agents of the Lahaska Insurance Company, of Pennsylvania, and as such agent made a contract with W.C. King, for and on behalf of the Lahaska Insurance Company, to insure a framed dwelling, and that, at the time said contract was made, said insurance company was a foreign corporation, and not qualified to do business in Alabama, and that the loss of $900 was sustained on said contract. Pending the suit, W.C. King died, and, as no debts were owing, no administration was had on his estate, and the relators here, each being over the age of 21 years, sought to have the suit revived in their name. The court denied the order, and they applied for mandamus.

Farmer & Farmer, of Dothan, for appellants.

W.L Lee, of Columbia, for appellee.

BROWN J.

Section 2496 of the Code provides:

"All actions on contracts, express or implied; all personal actions, except for injuries to the reputation survive in favor of and against the personal representative."

Section 2497 provides:

"Real actions to try the title, or for the recovery of the possession of lands, and actions for injuries to lands survive in favor of the heirs, devisees, or personal representatives, and against heirs, devisees, tenants, or personal representatives, according to their respective rights," etc.

Section 2499:

"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 *** the legal representative of the deceased, his successor, or party in interest," etc.

At common law, whether the action was real or personal, the death of either party put an end to the suit; and, if the cause of action survived, a new suit might be brought, in the case of the death of the plaintiff, by his personal representative. 1 Cyc. 47, A. To avoid the necessity of allowing a suit to abate under such conditions, these statutes were enacted, providing a course of procedure for continuing the original suit to final judgment on the merits. Evans v. Welch, 63 Ala. 250. Otherwise stated, the right to revive and continue the original suit is statutory. 1 Cyc. 48; Gould v. Carr, 33 Fla. 523, 15 So. 259, 24 L.R.A. 130; Neal v. Haygood, 1 Ga. 514; In re Palmer, 115 N.Y. 493, 22 N.E. 221; Green v. Watkins, 6 Wheat. 260, 5 L.Ed. 256.

These statutes, being in pari materia, must be construed together and, when so construed, it is clear that in actions on contract and all personal actions, if the plaintiff dies and the cause...