Burke v. . Stokely

Pearson, C. J. The .motion to vacate embraced both the judgment by default and the final judgment. The attention of his Honor, seems not to have been called to this fact. We concur with him in the conclusion that the defendants do not make out a case of “ mistake, inadvertance, surprise or excusable *571 negligence.” C. C. P., sec. 133. So the motion was properly refused, in respect to the judgment by default; but to the final j udgment, there was a further objection. It was rendered after the death of one of the defendants. At common law, this would have paused an abatement of the action. 8 and 9 Will. III, ch. 11, provides that the action shall not abate by the death of ■one of the defendants, but his death may be suggested, and the action proceed against the surviving defendant. It was the business of the plaintiff to make this suggestion; as it is “error in fact,” to take judgment against one who is dead. Colson v. Wade, 1 Murphy, 43. The judgment being joint, the objection may be taken by the surviving defendant, although, if he be present and take part in the “ enquiry of damages,” when jndgment by default had been taken in the life time of his co-defendant, the Court could deprive him of this advantage, by allowing the suggestion to be entered mmcpro txmo, and the action to be treated as having abated in respect to the deceased party. In our case, however, the surviving defendant took no part in the enquiry of damages; and the final judgment should be vacated, and new enquiry of damages created, at which the alleged meritorious defence may possibly be made available to some extent. This will be certified. No costs are allowed. Per Curiam. Judgment reversed.