Nye v. Slaughter

Mr. Justice Fisher

delivered the opinion of the court.

The appellee, as administrator of the estate of William M. Beall, deceased, filed a bill of revivor in the superior court of chancery, alleging that the said Beall, on the 24th of January, 1849, obtained a decree in said court against the appellants for the sum of $2,095.80, besides costs of suit. That after the decree was so obtained, Beall died; and that the appellee has been appointed by the probate court of Yazoo county, said Beall’s administrator.

The prayer is that the appellants be required to show cause why the said decree should not be revived in the name of the appellee as such administrator, &c.

To this bill the appellants filed a demurrer, assigning as special cause: —

1st. “ That the bill seeks to revive a decree, and is framed as an original bill; ” and,

2d. “ It states a money decree, and shows that none such was rendered.”

After a careful examination of the bill of revivor, we are unable to discover the force of these objections. The bill is certain and definite as to the date of the decree, the parties thereto, the court in which it was rendered, the death of Beall the original complainant, and the appointment of Slaughter as Beall’s administrator. The bill also, in our opinion, contains the appropriate prayer, that the appellants show cause why the decree should not be revived in the name of the appellee as Beall’s administrator, and be duly executed.

It is, however, argued by counsel that, upon overruling the demurrer, the chancellor, instead of proceeding immediately to make the proper order, reviving the decree, should have ordered the appellants to plead, or answer the bill within a certain time. This would unquestionably have been the correct mode of proceeding on overruling a demurrer to an original bill. The reason of the rule in such case is, that it is as much the complainant’s right to have an answer to the various allegations of the bill, as it is the defendants’ to make it. The original bill prays an answer, and this prayer must be responded to, unless the complainant himself shall waive it. Not so, however, in regard to bills of revivor in cases like the present. The whole controversy has been ended by the final decree. The only question which such bill brings before the court is, one relating not to the previous controversy, but to the title of the thing, or money decreed. The complainant in the revivor asserts that this title has in virtue of Beall’s death, and the complainant’s qualification as administrator, by operation of law vested in him; and hence prays that the court, upon becoming satisfied of the truth of these facts, shall so declare the law.

The appellees were brought before the court for the purpose of showing cause why the title of Beall, to the money named in the decree, should not be declared as having vested in Slaughter, and enforced accordingly. In thus showing cause, they were at liberty to aver any fact which put in issue the rendition of the decree, the complainant’s title thereto, or deny that it was then in force, by alleging payment, &c. They, however, elected to demur to the bill, instead of pleading or showing cause, as above stated. Their demurrer was overruled, and they still fail to inform the court whether they have any defence to make to the merits of the bill, or any cause other than such as they present by their demurrer to show why the decree should not be revived in the name of the complainant. After a final decree settling the rights of the parties, as little delay as possible ought to be allowed in its execution. If it were equity that the complainant should have a certain sum of money, it was equity that he should have it at as early a day as possible after the decree was made. Hence in all proceedings to revive decrees, and where the defendants’ demurrer is overruled, the chancellor should proceed by analogy to the practice at law, and require a showing of merits before permitting the party to plead. This practice is necessary to prevent delay, and to the speedy administration of justice in cases where the rights of the parties have been finally settled.

Decree affirmed.