Logan v. Barclay , 3 Ala. 361 ( 1842 )

GOLDTIiWAITE, J.

The decision of the chief question involved in this case, is somewhat important, inasmuch as it will affect the coui’se of proceeding in a large class of eases.— Motions for summary judgments, although they partake much of the character of suits, are unknown to. the- common law, and must therefore, be entirely governed by the several statutes which authorise this mode of procedure. The one which warrants the motion we are no-w considering, in addition to giving a new remedy for a common law liability, inflicts a penalty beyond it. If we were doubtful, with respect to the power of the Court to mould the practice so as to conform to the common law, intases where no additional liability was superadded, we can have none in such a case as this, because the plaintiff ■would not be entitled to the statutory penalty, if he pursued his remedy by the ordinary mode of suit. In most of these summary proceedings against officers for a neglect of duty, the plaintiff might have case or assumpsit, at his election, and if he elected the former mode of action, he would not be entitled to revive his suit, although he might so have bi-ought his action as to proceed against an administrator.

So, likewise, it cannot admit of question, but the party plaintiff might pursue the sureties for the neglect of the principal, and they, in case of payment, would be entitled to indemnity ,from his estate.

Uet, none of these cases warrant the revival of suits unknown to the common law, and in the absence of particular statutory regulations, authorising such revival.

Hence we conclude, that there was error in making the administrator a party in this cause, by a revival of the suit.

This conclusion renders it unnecessary to examine the other point, respecting the plea of the statute of non-claim-,.

Let the judgment be reversed.