Floyd v. Ritter's Adm'r , 65 Ala. 501 ( 1880 )

BBICKELL, C. J.

— The argument of the counsel for the appellants is directed particularly to the regularity of the mode in which the administrator and the heirs of the deceased defendant, Anna Floyd, were made parties to this cause in the Court of Chancery. It was, doubtless, very irregular, if conformity to the rules of practice originally prevailing in Courts of Chancery could now be required. Under that practice, whenever, by the death, and by operation of law, the interest of a party to a pending suit in equity became vested in another, there was an abatement, or, rather, a suspension of proceedings, in whole or in part, which could be cured only by bringing before the court the party to whom the interest was transmitted. The mode of introducing the party was by bill of revivor (1 Brick. Dig. 709, § 999); and upon the bill an order or decree was entered, that the cause be and stand revived, in the plight and condition it was when the suspension of proceedings occurred. This practice may yet be pursued, if parties so elect; or the chancellor may, if he deems it proper, compel parties to pursue it. But the parties, if not otherwise ordered by the chancellor, maj'revive in the mode pointed out in the 102d Buie of practice, the second clause of which provides that, “ upon the death of a defendant, instead of proceeding by bill to revive against his personal representative or heirs, upon a verbal suggestion to the register or chancellor, an ex-parte order shall be made for a summons to issue to his personal representatives or heirs, or both, if required, to appear at a day named, and defend in place of the deceased; and when such summons is served, the suit shall be considered as revived at the expiration of thirty days after service thereof, and be thereafter prosecuted against the new parties, without any order of revivor.”

There was, in the proceedings by which the administrator and the heirs of Anna Eloyd were brought before the court, a substantial compliance with this rule. There was, first, a suggestion of her death entered of record; and by leave of the court, Hatchett was made a party, as her personal representative. Subsequently, the bill was amended, and Jones was made a party defendant, as her administrator, and he appeared and answered. The chancellor made an order, requiring the heirs to be made parties; the bill was amended, making them parties, and they were served with a summons, requiring them to appear and plead or answer; not obeying which, a decree proconfesso was rendered against them. Now, the amendment of a bill is not a very regular or usual mode of introducing the personal representative or heirs of a deceased defendant; but it may serve the purposes of a suggestion of the death of the defendant, and of the persons who are his representatives ; and when they are served with notice to appear and plead or answer, all the purposes of the rule of practice are satisfied. The record discloses the death of the defendant, and who has succeeded to her rights and interests, and notice is given to whoever stands in that relation, to come in and defend.

The decree rendered is in conformity to the view of the case we intimated when the cause was here at a former term. Floyd v. Bitter, 56 Ala. 356. The defects in the pleadings then pointed out have been corrected, and an amended answer of Mrs. M. A. Eloyd is now in the record, admitting fully the standing of the complainant as a creditor of Anne Floyd.

The decree is affirmed.

Stone, J. not sitting, having been of counsel.