Dibble v. Norton ( 1870 )

PeytoN, C. J.:

William Norton and P. A. Norton, as administrators of the estate ef William Norton, deceased,'obtained a judgment in the circuit court of Tippah county, against James B. Ellis and others, for eight hundred and fifty-one dollars, on the eighth day of September, 1860, which was duly enrolled on the eighth day of October, 1860. An execution was issued On said judgment, returnable to the March term, 1861, of said court, which was superseded by writ of error to the high court of errors and appeals, where said writ of error was dismissed. P. A. Norton, one of the plaintiffs in said judgment, died in the spring of the year 1861, and the other plaintiff in the judgment, died in the year 1864; and J. W. Norton became administrator de bonis non, of the estate of WilliamNorton, deceased, on the 19th day of November, 1866, and upon his suggestion of the death of the said plaintiffs, the judgment was revived in Ms name, on the 16th day of March, 1867. And on the 13th day of September, 1860, H„ E. Dibble obtained a judgment in said court, against the said James B. Ellis, for one thousand four hundred and fifty two dollars and eighty-two cents, which was duly enrolled on the 9th day of October, 1860, and on which an execution was issued, returnable to the March term, 1867, which was levied upon a section of land of the said J ames B. Ellis, which was sold under said execution, on the 4th day of February, 1867, for seven hundred dollars, and on the 16th day of March, 1867, the court ordered the sheriff to apply the money arising from said sale, to the elder judgment in favor of the said J. W. Norton. From this judgment of the court, the said H. E. Dibble brings the cause to this court, by writ of error: 1. The court below erred in granting the order of revival upon the mere motion of the defendant in error. 2. The court erred in granting the order of revival without directing a scire facias to issue to the defendants in the Norton judgment. 3. The court erred in ordering the sheriff to apply the money to the Norton judgment.

As the two first assignments of error question the propriety of the revival of the elder judgment, in the name of defendant in error, without a scire facias to the defendants in that judgment, we will consider them together.

The counsel for the plaintiff in error, in their learned and elaborate brief, have exhausted the English learning upon the subject of scire facias. We think, however, that the question presented by this record, for our adjudication, may be decided by reference to the provisions of our own 1’ocal law.

Our statute provides that if any executor or administrator should die, resign, or be removed, or his function should cease from any cause, before the estate is finally settled, suits or actions commenced by or against such executor or admin- • istrator shall not, for that reason, ab.ate, but the same may be prosecuted by or against his successor in the administration, who may come in and make himself a party to suits or actions commenced by or against his predecessor, by proper suggestion ; or, if he fails to do so, he may be brought in by the opposite party by scire facias; and all judgments recovered by or against any executor or administrator who has died, resigned, or been removed, may be revived for or against his successor in the same way. Rev. Code, 456, art. 124.

In the case under consideration the defendant in error appeared in court and suggested the death of bis predecessors, and asked that said judgment be revived for him and in bis name as successor in the administration of the estate of the said William Norton, deceased. If the successor in the-administration fail to appear and make himself a party, then he may be brought in by the opposite party by scire facias. The successor has, under this statute, an undoubted right to-have the judgment revived in his name without scire facias^ upon the suggestion of the death of his- predecessors. This right, in our opinion, is- too clear to admit of a doubt. There is, therefore, no error in reviving the judgment in the name-of the defendant in error without scire facias. ■

The third assignment of error impeaches the propriety of the judgment of the court in ordering the sheriff to apply the proceeds of the sale under the judgment of the plaintiff in error to the elder judgment of the defendant in error. It is insisted that the elder judgment has lost its priority of lien by the negligence of the plaintiffs to enforce it. They obtained their judgment at the September term, 1860, and had an execution isssued thereon, returnable to the next ensuing term of the court, which,in the meantime, was superseded by a writ of error to the high court of errors and appeals. • This writ of error was dimissed by that court, hut when that dismissal took place we are not informed. For aught that appears it may not have occurred until a short time before the death of the surviving plaintiff, which appears to have occurred in 1864. Thus far there is no evidence to show that they are justly chargeable with negligence, and no laches could be legally imputed to any one after their death until the judgment was revived in thenarse of the successor of the deceased plaintiffs in the administration. The record shows that the defendant in error availed himself of the first term of the court after he took administration to have the suit revived in his name, and after revival of the judgment, but at the same term, he claimed the pro-needs of the sale in tbe bands of the sheriff by virtue of the •prior lien of his judgment on the property sold.

It is true, that the statute provides that the priority of lien shall not extend to judgment creditors who fail, refuse, or neglect to sue out execution of their judgment or judgments until a junior judgment creditor has, by due diligence, caused his execution t® be levied upon the property of the defendant; but in all such cases the sale by the sheriff or other officer shall vest the title of the defendant in the purchaser, and the proceeds of such sale shall be applied to the satisfaction of the junior judgment creditor; provided, that before such junior creditor shall cause a levy to be made, he shall give notice to older creditors in execution, that unless they proceed in ten days to levy he will jn'oceed. In that case he shall have a preference under his levy. Rev. Code, 524, art. 260.

This provision contemplates a case where there are living plaintiffs who could legally enforce their judgment by execution, a.nd does not apply to a case where all the plaintiffs are dead, who cannot properly be said to fail, refuse, or neglect to sue execution. Ro laches is imputable to the dead. The same event which rendered it impossible for the plaintiffs in the elder judgment to sue out execution also rendered it impossible for the plaintiff in the junior judgment to perform the condition in the proviso, the performance of which gave him a preference under his levy. This is a state of things not anticipated bjr the legislature, and, therefore, not provided for. The rights of neither party are affected by the failure to perform an impossibility. The lien of the elder judgment could be displaced only by the negligence of the plaintiffs, and as that has not been made to appear, it continued a prior lien on the property sold to the time of the sale, which ffivested that lien, and vested the title.of the defendant to the property sold, in the purchaser. And, as the proceeds of the sale remained in the hands of the sheriff to be applied ender the order of the court, we think the defendant in error Avas legally entitled to them by virtue of the prior lien of his judgment, and that the court below did not err in awarding them to him. Let the judgment be affirmed.