Ex parte Sayre , 69 Ala. 184 ( 1881 )

STONE, J.

There was an action of ejectment brought in July, 1871, by John Doe, on the demise of several named lessors, against Diehard Doe, on which the customary notice was issued to P. W. Donaldson, as tenant in possession, or claiming title to the premises sued for. This Cause was several times continued, and on May 16th, 1876, “the death of P. W. Donaldson, the defendant, is [was] suggested and proved, and leave granted the plaintiff to revive this suit against the' personal representatives of the defendant, and cause continued.” The name -of the personal representative is not given, and no suggestion or motion is made in reference to the heirs. No scire facias is shown to have been issued. No other order of the court was made, except continuances, until June 21st, 1879, when the following entry was spread on the minutes: “ This day came the parties by their attorneys, and the death of P. W. ílonáldson, the defendant, is suggested, and on motion leave is granted to revive against the defendant’s personal representatives and widow, on notice to be issued to them, and cause continued.”' No notice is shown to have issued under this order, and it is not shown who was or is the personal representative, who is the widow, or why she should be made a party. No other action, except continuances, is shown to have been had, until December 8th, 1881, when leave was granted to revive in the name of Joseph IT. Pope, husband of Lydia Pope, one of the lessors of the plaintiff, whose death was suggested. January 7th, 1882, on motion, the cause was stricken from the docket, for a failure to revive against the heirs and personal representative of Donaldson, within the eighteen months prescribed by the statute. Code of 1876, §§ 2908, 2910.

We need not, and do not determine in this case, what would be our'ruling, if the motion had been made to revive against the heirs and personal representative, within eighteen months after the death of Donaldson, and, for some cause, that motion was not acted-upon within the eighteen months. 'That case is not presented by this record, for no motion has ever been made to revive against the heirs. See Evans v. Welch, 63 Ala. 250; Brown v. Tutwiler, 61 Ala. 372. There can be no question that the plaintiffs have lost their right to revive against the heirs of P. W. Donaldson, and consequently they can not, in this action, recover the possession of the lands.

As to the attempt to revive against the personal representative, should there be a wish to proceed only for mesne profits or rents, the petitioner is in no better condition. The motion was to revive against the personal representative, not the personal representative when known. The implication from this is, that a personal representative had already been appointed. Now, a proceeding against the personal o-epresentative, without more, is a proceeding against no one. — 2 Brick. Dig. 132, §§ 10,, 11,12,13. More than "five years had elapsed since "Mr. Donaldson’s death had been made known, and the name of the personal representative was never brought- to the attention of the court. This can not be regarded even as a motion to revive. Lest we might be misunderstood, we will add, there might possibly be cases in which, the motion being made in time, the mover might' not be able to ascertain the name of the personal representative within the eighteen months, by reason that through the delays of litigation, none may be appointed within that time. Whether this would be an excuse or not, we need not positively decide; but there are strong reasons in support of it. To make it available, liow'ever, the record should disclose the facts. The law favors speedy trials, and speedy revivors, as a necessary corollary. Bearing on the question of revivor, after the expiration of a term declared on, we cite without comment, Lessees of Smith v. McCann, 24 How. (U. S.) 398 Van Rensselaer v. Owen, 33 How. Pr. Rep. 12; Alden v. Grove, 18 Penn. St. 377; Cresap’s Lessee v. Hutson, 9 Gill. 269; Cheney v. Cheney, 26 Vt. 606; Gordon v. Overton, 8 Yerg. 121; Torrance v. Betsy, 30 Miss. 129.

Motion for mcmdamus denied.