Hargett v. Parrish

McCLELLAN, J. — Hargett instituted and prosecuted to final judgment adverse to himself, a statutory contest of Parrish’s election to the office of sheriff of Franklin county. The contestant appealed from that judgment to this court, but before the cause came on to be heard here, the contestee — appellee—died, and one Hall was appointed by the governor to succeed him in the office of sherriff. Motion is now made to revive the appeal against the said Hall and to substitute his name for that of Parrish in this court. And upon that motion the cause is submitted. The proceeding being purely statutory, no pretense that there could be .such revivor or substitution at common law being made, the order sought must find statu [518] tory authorization, or it cannot be granted. The statute providing for the contest itself provides that a contest does not abate by the death of the contestant, but contains no provision in respect of the death of the contestee. Section 2600 of the Code provides that “all actions on contracts, express or implied, all personal actions, except for injuries to the person or reputation, survive in favor of or against the personal representatives.” The present is not an action within the meaning of that section ; and if it were, Hall is not the personal representative of the deceased Parrish. Section 2608 of the Code is as follows: “No action abates by the death or other disability of the plaintiff or defendant, if the cause of action survive or continue; but the same must, on motion, within eighteen months thereafter, be revived in the name of or against the legal representative of the deceased, his successor, or party in interest; or the death of such party may be suggested upon the record, and the action proceed in the name of or against the survivor.” The contest of an election is not’ within this section, since it applies only to cases in which the cause of action survives, and the cause of action involved in such contest does not survive at common law, nor is it within either of the sections, 2600, 2601 or 2602, which undertake to declare what causes of action do survive, and all that survive, the death of parties; nor does the cause by the terms of the contest statute survive the death of the contestee, as we have seen. Having reference to mandamus, prohibition, certiorari and other remedial writs of a supervisory nature, section 3162 of the Code provides: ‘ ‘If any officer against whom such proceedings are had should die, or otherwise vacate his office, while the same are pending, whether on appeal or otherwise, the same may be revived against his successor in office, in the manner in this chapter provided.” The contestation of an election obviously is not a proceeding for mandamus, prohibition, certiorari, or other writ of a supervisory nature : it involves the issuance of no writ supervisory of the official acts of officers, to which alone the section last quoted has relation, and is not in form or substance supervisory of the action of any officer or officers; but’ is a mere ad [519] versary trial of the right of office between two parties, each of whom claims to have been elected thereto. No other statute has been called to our attention, or exists which bears at all upon the question. As neither the common law nor any statute authorizes revivor against or the substitution of the name of Hall, as appellee in the case, the motion to that end must be denied. Motion denied.