Taney v. Edwards

• Decision Date: 01 January 1863
• Citation: 27 Tex. 224
• Parties: JOHN TANEY v. JOHN EDWARDS.
• Court: Texas Supreme Court

27 Tex. 224

JOHN TANEY

v.JOHN EDWARDS.

Supreme Court of Texas.

1863.

In an action of damages for malicious prosecution, the plaintiff below recovered judgment against the defendant, who appealed therefrom to the supreme court. Pending the appeal, the death of both parties is suggested to the supreme court. Held, that, being founded on a cause of action which does not survive, the suit abates.

NOTE.--Questioned in Cherry v. Speight, 28 Tex., 503; and overruled in Gibbs v. Belcher, 30 Tex., 79;Hart v. Mills, 38 Tex., 513;Flanagan v. Pearson, 42 Tex., 1.

To determine what actions survive in favor of or against the representative of a deceased party, recourse must be had to the common law, inasmuch as our statutes enact no rule on the subject.

APPEAL from Travis. Tried below before the Hon. A. W. Terrell.

This was an action for malicious prosecution, brought by the appellee against the appellant. There was verdict and judgment in favor of Edwards at the fall term, 1859, for $250; for which Taney, the defendant, appealed.

The opinion states all other necessary facts.

Chandler & Turner, for the appellant.

Sneed & Walton, for the appellee.

MOORE, J.

This is an action for malicious prosecution. Since the case has been pending in this court both of the parties have died, and upon a suggestion of their death at a former term of the court, it was revived in the names of their representatives. These orders were made by the court without an inspection of the record, or its attention being called to the character of the suit. The act to regulate proceedings in the district court provides that in suits when the plaintiffs or defendants shall die before verdict, if the cause of action survive, the suit may be continued by or against their respective representatives. And when, in such cases, parties have died pending an appeal in this court, it has been the settled practice since the organization of the court, upon a suggestion of their death, to permit their representatives to be made parties. And the court has uniformly held that the representatives of the deceased party must be made a party to the record before a judgment could be entered. If this be the correct practice, and it has been too long and well recognized for us now to question it unless the case is one in which the cause of action survives, the suit must abate by the death of a party pending an appeal or writ of error. Our statutes do not define the suits in which the cause of action will survive either for or against the representative of a deceased party. Hence, to determine this, we must look to the common law; and here we find it a fixed rule, “that in all cases of injuries to the person, whether by assault, battery, false imprisonment, slander, or otherwise, if either...