Willis v. Patterson

The appeal is from an order of the circuit court denying the defendant's motion to "quash the verdict and judgment in the cause and dismiss the case."

The action was commenced by Randolph P. Andry as the administrator of the estate of Oscar Andry, deceased, on June 22, 1938, under the homicide act to recover damages for the wrongful death of the plaintiff's intestate. The defendant appeared and filed his plea of the general issue, not guilty, July 18, 1938. On June 27, 1941, "upon motion of plaintiff," the "plaintiff was allowed to amend the complaint by substituting James S. Patterson as administrator of the Estate of Oscar Andry, deceased, in place of Randolph P. Andry administrator of the Estate of Oscar Andry, deceased."

The necessity for the substitution does not appear of record, and though the defendant was present in court by his attorney, no objection was made thereto. The case proceeded to trial on the same date, resulting in a verdict and judgment for the plaintiff for $1,250.

The grounds set up in the motion to quash, vacate and dismiss, are that the original plaintiff had died in March, 1940, and the suit was not revived as required by law — more than twelve months having elapsed between the date of said death and said substitution.

The statute, Code 1940, T. 7, § 153, providing for revivor of actions, when the cause of action survives, "is in the nature of a statute of limitations barring the right, if it is not exercised in the mode and within the prescribed time." Pope, Adm'r v. Irby, Adm'r, 57 Ala. 105, 107; Forbes Piano Co. v. Hay, 200 Ala. 80, 75 So. 408.

The bar of the statute to a revivor like the bar of the statute of limitations may be waived by a failure to assert or claim it before judgment. Code 1940, T. 7, § 570.

Moreover, the order denying the motion will not support the appeal. Carlisle et al. v. Carmichael et al., 222 Ala. 182,131 So. 445; Ex parte Gay, 213 Ala. 5, 104 So. 898.

Appeal dismissed.

GARDNER, C. J., and THOMAS and LIVINGSTON, JJ., concur.