Jones v. Lamar

Blandford, Justice. The question here is, can a foreign administrator de bonis non cum testamento annexe be made a party to a suit at law, which was brought by a foreign executor who has died pending the action, by scire facias f If such foreign administrator can be made a party, it must depend upon some statute of this state, and we know of no such statute. By the common law, when a party to a suit died, the action abated, and by statute the same was allowed to be revived in the name of his executor or administrator ; but it is most manifest that such an administrator or executor must have been appointed in this state, and is not a foreign administrator or executor. The privilege to bring an action or suit by a foreign executor or administrator is expressly granted by statute (see the acts of 1850, Cobb’s Digest, 341; acts of 1860, p. 32; Code, §2614); but there is no provision that if such foreign executor dies pending the action, an administrator, with the will annexed, may be made a party by scire facias, and thereby revive the suit. As to the subject of making parties to suits, see ■ part iii, title ii, chap, vi of the Code, §§3421,3436,in which it will be found that executors and administrators, as therein mentioned,, mean executors and administrators domiciled or resident within this state. The court below having refused to allow an administrator cum testamento annexo to be made a party to the suit commenced by the executor, he being a foreign executor, his judgment must be affirmed. Judgment affirmed.