State ex rel. King v. Pearce , 14 Ala. App. 628 ( 1916 )

BROWN, J.

Section 2496 of the Code provides: “All actions on contracts, express or implied; all personal actions, except for injuries to the reputation, survive in favor of and against the personal representative.”

Section 2497 provides: “Real actions to try the title, or for the recovery of the possession of lands, and actions for injuries to lands, survive in favor of the heirs, devisees, or personal representatives, and against heirs, devisees, tenants, or personal representatives, according to their respective rights,” etc.

Section 2499: “No action abates by the death or other disability of the plaintiff or defendant, if the cause of action survive or continue; but the same must, on motion, within twelve months thereafter, be revived in the name of * * * the legal representative of the deceased, his successor, or party in interest,” etc.

(1) At common law, whether the action was real or personal, the death of either party put an end to the suit; and, if the cause of action survived, a new suit might be brought, in the case of the death of the plaintiff, by his personal representative. — 1 Cyc. 47, A. To avoid the necessity of allowing a suit to abate under such conditions, these statutes were enacted, providing a course of procedure, for continuing the original suit to final judgment on the merits.—Evans v. Welch, 63 Ala. 250. Otherwise stated, the right to revive and continue the original suit is statutory.— 1 Cyc. 48; Gould v. Car, 33 Fla. 523, 15 South. 259, 24 L. R. A. 130; Neal v. Haygood, 1 Ga. 514; In re Palmer, 115 N. Y. 493, 22 N. E. 221; Green v. Watkins, 6 Wheat. 260, 5 L. Ed. 256.

(2-4) These statutes, being in pari materia, must be construed together; and, when so construed, it is clear that in actions on contract and all personal actions, if the plaintiff dies and the cause of action survives, the action survives in favor of the personal representative.—Wynn, as Adm’r, v. Tallapoosa County Bank, 168 Ala. 492, 53 South. 228. In such actions the terms “legal representative,” “his successor,” and “party in interest,” have reference only to the personal representative of the deceased, and such personal representative is the only proper or necessary party.—Thompson v. Lee, 31 Ala. 292. In actions to try the title to or recover the possession of lands, on the death of the plaintiff the action survives in favor of the heirs as well as the personal representative, and the action may be revived in the name of either the heirs at law or the personal representative.—Rowland & Heifner v. Ladiga’s Heirs, 21 Ala. 9; Jordan v. Abercrombie, 15 Ala. 580; Leatherwood, et al. v. Sullivan, et al., Ex’rs, 81 Ala. 458, 1 South. 718; Espalla v. Gottschalf, 95 Ala. 258, 10 South. 755; 1 Cyc. 89(11).

The order of the circuit court overruling the petitioners’ motion to revive in the names of petitioners as the only heirs at law of the deceased plaintiff was correct.

(5) The petition, on its face, not making a case entitling the petitioners to the relief prayed, the petition will be dismissed without the issue of the rule nisi.—26 Cyc. 471; Moore v. Waco Building Ass’n, 92 Tex. 265, 47 S. W. 716.

Petition dismissed.