State ex rel. Townley v. Pugh , 14 Ala. App. 585 ( 1916 )

THOMAS, J.

This is a petition for a writ of mandamus, where the relator, Townley, prays that such a writ be issued and directed to Hon. John C. Pugh, as judge of the city court of Birmingham, requiring him to vacate and set aside an order theretofore entered by him dismissing from his docket a suit in trover brought in that court by petitioner, as plaintiff, against one A. W. Burgin, as defendant, and requiring said Pugh to reinstate said cause on the docket and to make and enter an order therein reviving the same again J. B. Burgin, as executor of the last will and testament of said A. W. Burgin, defendant, who, it is alleged in the petition here, died before the mentioned order of dismissal was made and entered.

We have heretofore held that, if relator was entitled to the rélief now prayed, his remedy was by mandamus, as is here pursued, and not by appeal, as was formerly resorted to by him. —L. L. Townley v. J. B. Burgin, infra, 69 South. 591.

(1) The petition here is only answered by a demurrer filed to it by respondent, raising the point that the allegations of the petition fail to show a case warranting the relief prayed, and raising the further point of laches in filing the petition. We are of opinion that the demurrers are without merit, and that the writ of mandamus should issue. It appears from the petition that A. W. Burgin, the person against whom, as defendant, the petitioner, as plaintiff, brought the said suit that was so dismissed by the court, died some time after the suit was brought against him, and that within 12 months thereafter the plaintiff, the petitioner here, with a view to reviving the suit, suggested on the record the death of said Burgin, and that an order was then entered by the court granting plaintiff leave to revive against the personal representative of deceased when known. Subsequently, and within the 12 months, it was made known to the court that the personal representative of deceased was James B. Burgin, who had in the meantime been appointed executor of his last will and testament; and, on 'motion of plaintiff, an order was then made and entered granting plaintiff leave to revive the cause against (quoting from the order) “James B. Burgin, executor of the last will and testament of Andrew W. Burgin, deceased, arid,” continues the order, “for that purpose, upon the plaintiff’s motion, it is further ordered that citation issue to the said James B. Burgin, executor of the last will and testament of Andrew W. Burgin, deceased, requiring him to appear and defend herein within 30 days after service upon him of said citation.”

In pursuance of this order, a citation or writ was duly issued by the clerk, directed to the sheriff, commanding him to summon the said (quoting) “James B. Burgin, executor of the last will and testament of Andrew W. Burgin, deceased,” to appear and defend the said suit within 30 days from the service upon him of this writ. The sheriff duly executed and returned into court, as executed, said citation, before the expiration of 12 months from the death of said A. W. Burgin, the deceased defendant. Thereafter the case was continued from term to term until October 6, 1913, when the court, upon motion of said James B. Burgin, entered an order dismissing or abating the suit, acting in so doing upon the theory, as we judge from the demurrers filed as an answer to the petition for mandamus, and from the arguments urged in support thereof, that the steps taken by plaintiff, petitioner here, against said James B. Burgin, as hereinbefore mentioned, to revive the suit, were taken against him in his individual, and not in his representative, capacity, in that the order of the court directing the issuance of citation to him, and the citation issued in pursuance thereof which was served on him, described him as “James B. Burgin, executor of the last will and testament of A. W. Burgin, deceased,” and not as “James B. Bur-gin, as executor,” etc.

The case of Jenkins v. Bramlet, 131 Ala. 597, 32 South. 575, cited in the brief of respondent’s counsel,' where it was held that an . order of revivor in the name of “L. W. Bramlet, executor of the estate of Elias A. Bramlet, deceased,” as party plaintiff was a revivor in the name of L. W. Bramlet as an individual, and that the words in the order of revivor “executor,” etc., immediately following his name, were merely descriptio personae, would seem to furnish authority for the contention of respondent. But we think that that casé is distinguishable from the case' at bar on the same grounds that it was distinguished by our Supreme Court from the case of Alabama City, Gadsden & Attalla Ry. Co. v. Heald, 178 Ala. 638, 59 South. 461, where the suit was by “Robbie F. Heald and Ada V. Heald, administrators of Pat H. Heald, deceased,” and where our Supreme Court held that the action' was-by said Robbie F.' Heald and Ada V. Heald, not in their individual, but in their representative,-capacity, because, although the word “as” was not inserted in the complaint between their names and the word “administrators” immediately following (the insertion of which word “as,” or words of like import, is usually necessary in order to show that the parties are proceeding; or are being proceeded against, in' their representative capacity), yet that, in view of the fact that the complaint disclosed — which was not true in the Jenkins-Bramlet Case, supra —that the cause of action was one which could only be maintained by the said Robbie F. Heald and Ada V. Heald in their representative capacity, it- must be held that the words “administrators,” etc.-, immediately following their names in the complaint, showed that they were proceeding as plaintiffs in such capacity, and not as individuals.—Alabama City, Gadsden & Attalla Ry. Co. v. Heald, supra. So here the cause of action sought to be revived could only be revived against James B. Burgin in his representative capacity, since he was not personally or individually liable for the tort alleged in the complaint to have been committed by his testator, A. W. Burgin; consequently, it must be held that the proceedings against him to revive the suit were in his representative capacity, although the word “as” was omitted between his name and the word “executor” as employed in the mentioned orders and citation of the court. The statutes (Code 1907, §§ 2499, 2500), which furnish the only authority in law for reviving the suit, the common law having required the commencement of a new action, permit a revivor against only the personal representative of a deceased defendant in this kind of an action; hence it would not do, we think, to hold otherwise than that James B. Burgin was brought in in his representative capacity, when the orders of the court and the process issued thereon by which he was brought in described him, as before seen, as. “James B. Burgin, executor of the last will and testament of A. W. Burgin, deceased.” Under these circumstances it would not comport with a fair and reasonable construction of terms to-say that the words “executor,” etc., immediately following his name are merely “descriptio personae.” He could not in any other capacity than as personal representative of A. W. Burgin, the deceased defendant, be brought in to defend an action of trover brought against the former, A. W. Burgin, wherein the complaint alleged a conversion by A. W. Burgin, and not by Jamés B. Burgin,'of certain personal property therein described.

(2) It' is next insisted by respondent that, notwithstanding this holding, the petition for'mandamus should be denied because of alleged- laches on the-part of relator in preferring-or filing said petition,, it appearing from the allegations thereof that the mentioned order of the court dismissing the suit was entered on October 6,1913, while this petition for mandamus praying a reinstatement of the cause was not filed until July 12, 1915 — a year and 8 months after said dismissal. It further appears, however, that practically the entire time intervening between said dismissal and the filing of this petition was consumed by the relator in testing out by appeal the question as to whether or not an appeal from the order of dismissal was not the proper remedy to pursue in order to get said cause reinstated on the docket, and that not until May 11, 1915, was that question determined, when it was then decided by this court, as hereinbefore stated, that mandamus, and not appeal, was the proper remedy (Townley v. Burgin, supra, 69 South. 591), which decision was subsequently, on certiorari to our Supreme Court, affirmed by them shprtly before the relator filed this petition here for mandamus on July 12, 1915. Under these circumstances, we do not think that any laches in preferring the petition are imputable to the relator.— 26 Cyc. 392-394, and authorities cited in note 10 on page 394.

(3) The statute (Code 1907, § 2500) authorizing and providing the method for reviving a suit against the personal representative of a deceased defendant contemplates that,- after the issuance and service upon such representative of the citation provided for by the statute, there shall be entered by the court a formal order of revivor, which is usually necessary in order to complete the revivor, unless waived by the conduct of the opposite part.—Code 1907, § 2500; Waddill v. John, 48 Ala. 232. No such order of revivor was ever entered in this case, but, as before pointed out, the plaintiff, at the time of the dismissal of his suit by the court on the said motion of said James B. Burgin, had taken all the preliminary steps necessary to entitle him to the order of revivor, and had taken them within 12 months after the death of said A. W. Burgin, the deceased defendant.—Code 1907, §§ 2499, 2500. This is sufficient to authorize the entering of an order of revivor after the lapse of 12 months from the death of deceased.—State, ex rel. Wilder v. Smith, 12 Ala. App. 636, 68 South. 490, and cases there cited.

It is ordered that writ of mandamus issue, directed as prayed in the petition, and requiring Hon. John C. Pugh to set aside the order of dismissal and to reinstate the cause on the docket, and to enter an order of revivor against James B. Burgin, as executor of the last will and testament of A. W. Burgin, deceased, if promptly moved for by petitioner as plaintiff.

Writ granted.