Morrow v. Taggart

B. F. SAFFOLD, J, A motion is made to dismiss the appeal on the ground that the judgment is against two named defendants, and the appeal is taken in the name of one of the defendants and the two administrators of the other one who died after the rendition of the judgment. Section 8507 of the Revised Code authorizes an appeal to be taken by the representative of a party who dies after judgment, and before appeal taken, on proof, satisfactory to the clerk, of the death of the party and grant of letters testamentary or of administration. An appeal can not be taken by one of several defendants in his own name alone. It.must be sued out in the name of all the defendants, after w’hich there may be a summons and severance as to those who refuse to join.—Moore v. McGuire, 26 Ala. 461. In Savage & Darrington v. Walsh & Emanuel, 24 Ala. 295, the judgment was against two. The appeal was taken by one, who afterwards died. The court held that the suit must be, revived in the name of his administrator, and that the other defendant must be made a party. If there should be an affirmance, the judgment would be rendered against all the parties, as against the administrator to be levied de bonis intestatis, and against the others, de bonis propriis. Bancroft, Adm’r, v. Stanton, 7 Ala. 351, was to the same effect, the administrator and the other plaintiff in error having joined in a writ of error. At that time the general law was, that the executor or administrator could not be joined with one chargeable on his own account; but by sections 2546, 2547, Revised Code, suits against joint obligors are not required to abate as to one who may die, but may be revived against his personal representatives and a several judgment rendered against the survivors, and the representatives of the deceased. If the practice indicated in the cases cited from 7th and 24th Ala. was doubtful, these sections are confirmatory and decisive. The motion to dismiss the appeal is therefore denied. The complaint being on. behalf of John K. Cullen, as administrator of William Cullen, deceased, as plaintiff, to recover assets of his intestatis estate, and the said plaintiff having died, the suit was revived in the name of his ad [299] ministrator, and not of the administrator de bonis non of William Cullen. The judgment was by default and in favor of the plaintiff. Thus the representative of John K. Cullen recovered the assets of the estate of William Cullen. An action on a promissory note must be brought in the name of the party really interested. — Rev. Code, § 2523. If he should die pending the suit, it must be revived in the name of his legal representative. If the latter should die, an administrator de bonis non is his successor, and the one in whose name the suit should be revived. If his own representative should be allowed to recover the assets of the original intestate, he only would be responsible for it, and not his sureties, or the estate of his intestate. Therefore, he has no more claim to recover than a stranger. The complaint does not authorize the judgment; nor does it contain a substantial cause of action in favor of the present plaintiff. The judgment is reversed, and the cause remanded.