Bentley v. Dickson , 1 Ark. 165 ( 1838 )

Dickinson, Judge,

delivered the opinion of the court:

This was an action of debt brought by George Bentley, in his lifetime, against the defendant, in the Conway Circuit Court, at the March Term,. 1838. The suit was revived in the name of Eli Bentley, as executor of George Bentley deceased. After its revival, it appears from the record that the Executor filed an amended declaration in the name of George Bentley.

The defendant also filed a general demurrer, which was sustained by the court, and judgment entered thereon; from which the plaintiff has prosecuted an appeal to this court. The record presents but one question for our consideration, and the decision upon it necessarily settles all the points raised under the assignment of error. Was the ° judgment upon the demurrer rightfully sustained by the court below?

The counsel of both parlies appear to have taken a wrong view of this case, and occupied a position in their arguments not born out by the record. It is contended on the part of Dickson, that the amended declaration should have been in the name of the executor, and that it was to this declaration the demurrer went, while,on the other hand, the executor insists that the declaration is good in substance, and correct as to form.

Whether the court below considered the amendment as part of the •pleadings, and the one upon which judgment was given, we are unable to say, but will presume they did not; for although we find the amendment in the record, and in the name of the deceased after the sui-had been revived by his executor; yet, it never was entitled to any attention, either in this or the Circuit Court, as it does not appear that leave had ever been asked or given, to amend.

It is not only evidently absurd, and inconsistent in its terms and character, but irregularly and improperly filed: it could have no bearing upon the case, and though never actually stricken out, it would have been improper for the court to have looked into it. Taking the record, then, as we are bound to do, for our guide to the course pursued by the inferior cguií, in relation to the points assigned for error, we will presume that the Circuit Court treated the second declaration as a nullity; that discretionary power vested in the court as to amendments, never having been exercised in authorizing the plaintiff to change, alter, or amend his pleadings.

The act of the Legislature passed October 30, 1810, makes it the duty of executors and administrators to defend and prosecute all suits that survive to them, and gives them full power for that purpose. See Digest, p. 326. When the suit is revived, all the pleadings stand in the same altitude, as if they had never been abated by death: the names only are changed upon the record, and it is a legal fiction by which the writ, declaration, plea and other proceedings, are all considered as there standing in the name of the executor or administrator. This, it is believed, is the universal rule of practice, and in strict accordance with the principles of right and justice. This case now under consideration, so far as regards the pleadings, stands in the same position ■ before us as it did before the Circuit Court at the time of its revival, and the declaration subsequently filed, being irrelevant and a mere nullity by reason of its irregularity, the demurrer must go to the declaration filed at the commencement of the suit. And it now-remains for us to decide whether that declaration is sufficient to enable the party to recover. The action is in debt, founded on a promissory note for “ the sum of four hundred and five dollars, with interest to be computed after the date of ten per centum per annum, from the 8th day of June, 1831, till paid.” We have carefully examined the declaration, and the authority having any bearing upon the subject, and can discover no well founded objection to it. The breach, though somewhat improperly set out, is, we think, sufficiently assigned. Debt was the proper action, it being for a sum certain, or which could be reduced to a certainty. The authorities on this point are numerous and conclusive. The objection made by the appellant’s counsel, that the demurrer ought to have been filed at the first term, it is unnecessary to consider, as it appears to have been filed by consent of parties, and generally to the declaration.

And throughout the whole record, there is no mention made of the second declaration, except that a copy of it is sent up to us in the record, and that is marked as filed on the 18th of March, 1835. And in the whole course of proceedings, there is no other mention made of it, by either the court or the parties. As, then, the demurrer could only apply to the declaration legally and regularly filed, (which is the first,) and that is deemed good and sufficient, we are consequently brought to the conclusion, that the court below erred in sustaining the demurrer. The judgment must, therefore, be. reversed with costs, and the cause remanded to the Circuit Court of Conway, for further proceedings to be .had therein,not inconsistent with this opinion.