Sprawles v. Barnes , 9 Miss. 629 ( 1844 )

Mr. Justice Clayton

delivered the opinion of'the court.

This was a suit brought by Barnes, the appellee, and one Francis Durrett, as partners, against the defendants, the appellants. In the progress of the cause, the death of Durrett was suggested upon the record, and the suit afterwards proceeded in the name of Barnes alone, without any formal judgment of the court, that it should abate as to Durrett. There was no denial of the truth of the suggestion, but it is now sought by the appellants to reverse the judgment, because there was no formal abatement of the suit as to Durrett, coupled with an order that it might be conducted in the name of the surviving partner.

The statute on this subject, to which no reference however was made in the argument, provides that “ in suits or actions, real, personal and mixed, if there be two or more plaintiffs or defendants, and one or more of them should die, if the cause of action should survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the suitor action shall proceed in the name of the surviving plaintiff or plaintiffs, against the surviving defendant or defendants.” H. & H. 585. This statute is copied from one in Yirginia, and is the same in substance with the eighth and ninth VVil. III., and with a statute in New York. Under these various statutes, the mere suggestion of the death upon the records, seems sufficient to authorize the prosecution of the suit by the survivor. 1 Rob. Pr. 188, 246. 1 Tidd, 933. Graham’s Pr. 814.

The case of Officer v. Young, 7 Yer. cited on the argument, was decided upon a statute very different in its provisions from ours. See 6 Yerg. 325, Britton v. Thompson.

If the death of one of the parties be falsely suggested, it may be denied; even a judgment in favor of the alledged survivor, might be set aside, if procured by the fraudulent suggestion of the death of a co-plaintiff. In the absence of the most remote cause of suspicion that any fraud has been .employed in this cause, we do not feel authorized to reverse a judgment, in obtaining which, all the substantial requisitions of the statute seem to have been complied with.

The objection made to the order quashing the forthcoming bond, cannot avail the plaintiffs in error. They have not made the proceedings upon that occasion, a part of the record by bill of exceptions, which, according to the settled doctrine of this court, it was necessary to do, before the regularity of the judgment could be called in question.

We are unable to perceive any error in the judgment, and therefore direct it to be affirmed.

Judge Thompson filed the following petition for a rehearing:

To the judges of the hjgh court of errors and appeals, at Jackson, Mississippi.

Your petitioners, Samuel Sprawles et al., in the case recently decided by your honors, in which they were plaintiffs in error, and Shadrach Barnes, defendant, pray your honors for a rehearing, and assign as error in the opinion which they believe on rehearing you would correct; the necessity stated by your honors, of a bill of exception, setting out the forthcoming bond, which was quashed. Your honors will see that the judgment quashing the bond is erroneous on its face, and therefore it was not necessary to set out the bond in the bill of exceptions. See 6 How. Rep. p. 600.

Wm. Thompson, for plaintiff.

We think a rehearing in the above case should be granted.

W. Yerger.

J. S. Yerger.

Pryor Lea.

The Court refused to grant a reargument.