Temple v. Culp

• Decision Date: 04 November 1912
• Citation: 150 S.W. 867
• Parties: TEMPLE v. CULP et al.
• Court: Arkansas Supreme Court

Page 867

150 S.W. 867

TEMPLE v. CULP et al.

Supreme Court of Arkansas.

November 4, 1912.

Appeal from Bradley Chancery Court; Zachariah T. Wood, Chancellor.

Action by J. T. Temple against U. J. Culp, Jr. On motion of plaintiff to revive, and on motion of Mary A. Culp and others, heirs at law of deceased defendant, to strike from the docket. Motion to revive denied, and appeal stricken.

PER CURIAM.

Appellant, J. T. Temple, instituted this action in the chancery court of Bradley county against U. J. Culp, Jr., to cancel a tax deed and quiet title to a certain tract of land situated in that county, and on August 29, 1911, a final decree was rendered in the cause dismissing the complaint for want of equity. An appeal was granted by the chancery court on the day of the rendition of the decree. The transcript of the record was not filed within the time prescribed by law for perfecting the appeal, but on August 15, 1912, which was within the year allowed for taking an appeal, transcript was lodged and appeal was granted by the clerk of this court. Summons was issued for some, not all, of the heirs of the defendant, and was duly served on them. It appears by affidavits filed that U. J. Culp, Jr., died on October 7, 1911, and the cause has not been revived. The heirs at law of U. J. Culp, Jr., now move that the cause be stricken from the docket on the ground that there has been no revivor within the time prescribed by law. Appellant seeks at this time to revive in the name of the heirs, and that motion is resisted.

The statutes bearing upon this question read as follows:

"Sec. 6311. Upon the death of a defendant in an action for the recovery of real property only, or which concerns only his rights or claims to such property, the action may be revived against his heirs or devisees, or both, and an order therefor may be forthwith made in the manner directed in the preceding sections."

"Sec. 6313. An order to revive an action against the representatives or successor of a defendant shall not be made without the consent of such representatives or successor, unless in one year from the time it could have been first made."

"Sec. 6315. When it appears to the court by affidavit that either party to an action has been dead, or where he sues or is sued as a personal representative, that his powers have ceased for a period so long that the action cannot be revived in the names of his representatives or successor without the consent of both parties, it shall order...