Wallace v. Mcpherson

• Decision Date: 17 October 1905
• Citation: 139 N.C. 297,51 S.E. 897
• Parties: WALLACE. v. McPHERSON et al.
• Court: North Carolina Supreme Court

139 N.C. 297

51 S.E. 897

WALLACE.

v.McPHERSON et al.

Supreme Court of North Carolina.

Oct. 17, 1905.

Abatement and Revival—Death of Party —Penalties—Actions to Recover.

Code, § 188, provides that no action shall abate by the death of a party if the cause of action survive, and in case of death, except in suits for penalties, the court, on motion at any time within a year, may allow the action to be continued by or against decedent's representative, etc. Held that, where a register of deeds died pending an action to recover a penalty against him and his bondsman for issuing a marriage license in violation of Code, §§ 1814-1816, the court had no jurisdiction to continue the cause, either against his personal representative or surety, whether plaintiff was entitled to bring a new action, as provided by sections 1490, 1491 or not.

[Ed. Note.—For cases in point, see vol. 1, Cent. Dig. Abatement and Revival, § 286.]

Appeal from Superior Court, Cumberland County; Ferguson, Judge.

Action by the state, on relation of J. M. Wallace, against J. A. McPherson and another, to recover a penalty for issuing a marriage license in violation of Code, §§ 1814-1816. During the pendency of the action defendant McPherson died, and at the next succeeding term, his death being suggested, the court adjudged that the action abate, from which order plaintiff appeals. Affirmed.

T. H. Sutton, for appellant.

Rose & Rose, for appellee.

CONNOR, J. The only question presented by this appeal is whether, by virtue of section 188 of the Code, the action, being for a penalty, abates. The language of the section is plain: "No action shall abate by the death, marriage or other disability of a party, or by transfer of any interest therein, if the cause of action continue or survive. In case of death, except in suits for penalties, and for damages merely vindictive, * * * the court on motion at any time within one year * * * may allow the actionto be continued by or against his representative, " etc. If this section stood alone, there would be no question in respect to its construction. The court has no power in actions for penalties to make the personal representative of a deceased defendant a party, and in this condition of the record the action must abate. Such was the rule under common-law procedure and Rev. Code, c. 1, § 1, which prevailed prior to the adoption of the Code. Mason v. Ballew, 35 N. C. 483; Fite v. Lander, 52 N. C. 247.

The plaintiff insists that by virtue of sections 1490, 149...