Ridgeway's Administrator v. Waugh

BRICKELL, J. The material question presented by the record in this ease is, whether an action of unlawful detainer can be revived against the personal representative of the defendant, dying during its pendency. We decide the question in the affirmative. An action for an unlawful detainer, or an unlawful entry and detainer, or a forcible entry and detainer, is, under our statutes, a civil proceeding. R. C. §§ 3297-3320. It is an action for the recovery of the possession of lands, not involving the title to the freehold,- nor any interest descendible to heirs. A fair construction of the statute, as to the abatement and revivor of actions, embraces this as one of the actions surviving. R. C. § 2556. To hold otherwise, would materially impair the value and efficiency of the remedy, and subject it to delay and suspension by abatements, when the object of the statute authorizing it is a speedy restoration of the possession to the person from whom it is unlawfully withheld. 2. The appellant obtained, by the judgment rendered, all the benefit to which he was by any possibility entitled under his special plea. This being the case, if the demurrer to that plea [425] was improperly sustained, — which, however, we do not decide, — it was error without injury. < The judgment is affirmed.