Merchants Bank & Trust Co. v. Mississippi Bank

Smith, C. J.,

delivered the opinion of the court.

The original bill in this case was filed in 1906 against appellants upon a debt claimed to be due to complainants, Mississippi Bank and Jacob Bernheimer, doing business under the name of S. Bernheimer & Sons. In June, 1912, this bill was dismissed by the following order, entered upon the minutes of the court below:

‘Nippon proper motion this cause is hereby dismissed, and the defendant shall go hence without day. Complainants shall pay the costs, to be taxed, for which execution may issue as at law.”

This order was not based upon any motion or other preliminary proceeding. At the May term 1913, Sidney Bernheimer and Carrie Scharff filed a petition in the court below, alleging that Jacob Bernheimer was dead when this order of dismissal was entered; that they were the executor and executrix of his last will and testament; and prayed that this order of dismissal be set aside, the cause reinstated and revived in their names as executor and executrix, etc. The petition further alleged that after the institution of the suit, and prior to the. death of Ja,cob Bernheimer, he acquired the interest of the Mississippi National Bank in a cause of action set forth in the original bill, and became thereby the sole owner of the debt sought to be collected. A demurrer was interposed to this petition, overruled and an appeal granted to settle the principles of the cause.

Appellants’ contention is that it was not necessary to revive this cause upon the death of Jacob Bernheimer, but that it could have been proceeded with under the first clause of section 724 of the Code in the name of the surviving complainant. This may be conceded to be true, and still it is no answer to the question here under' consideration. The suit was not proceeded with after the death of Bernheimer in the name of the surviving complainant, but was summarily dismissed. Upon the death of a complainant, the only way in which a suit can be rightfully dismissed, in the absence of a party legally entitled to represent him, is by a proceeding under either section 2093, of the last clause of section 724, or under some other section of the Code dealing with the dismissal of such a cause, if such there be, which was admittedly not done in the cause at bar. The only jurisdiction which courts can exercise over the affairs of the dead is in the manner expressly provided by law. The relief sought by this petition is somewhat analogous to that which courts at law render upon a writ of error cor am nobis, and one of the grounds for the issuance of such a writ is the death of a party to an action before judgment. No error was committed in overruling the demurrer.

' Affirmed and remanded, with leave to appellants to answer within, thirty days after mandate filed in the court below.

Affirmed and remanded.