Pope v. Irby

BRICKELL, C. J. The only question presented by the record, is the right of a personal representative of a deceased plaintiff to revive a pending suit, the cause of action surviving, more than eighteen months having elapsed from the death of the plaintiff, before the application to revive is made. The statute (B. C. § 2542) authorizing the revivor of pending suits, and preventing their abatement, because of the death, or other intervening disability of plaintiff or defendant, limits the right of revivor to eighteen months from the occurrence of the event which renders it necessary to revive. The policy of the statute is to speed the trial of' causes, not permitting them to remain, at the discretion of’ the court or the election of parties, in a state of suspension.. Death is the most frequent cause of suspension, and the-policy pervading all our statutes in reference to the estates, of decedents, is, to terminate their administration on the expiration of eighteen months from the grant of letters’ testamentary, or of administration, which is usually made within a short period of time after death. No judgment can be rendered against a personal representative, without his consent, on a debt or claim against the decedent, until’ the lapse of eighteen months from his appointment, and that is the period within which all claims must be presented to-him. It is also on the expiration of this period that legatees or distributees have the right to proceed against him for the1 payment of legacies, or an accounting for distributive shares. The statute pursuing this policy intends that the revivor of' suits by or against him must not be procrastinated, so that, he will be embarrassed by them in closing the administration. It is in the nature of a statute of limitations barring> the right, if it is not exercised in the mode and within the prescribed time. The making of the motion within that time must appear of record; it can not rest in parol. If there is, as in the present case, no entry made by or under the authority of the court, that within eighteen months the death of the party was suggested, and an application to revive, on which the court acts, either by granting or refusing it, or by a continuance, there can be no revivor on [108] parol evidence that the suggestion and application was made. There was no error, either in excluding the evidence, or refusing the revivor, and abating the suit. The judgment is affirmed.