Sewall v. Bates' adm'rs

By JUDGE TAYLOR. I am ignorant of any cáse in which a clerk is permitted to determine upon the sufficiency of evidence offered for the purpose of making new parties to a cause. Even where the death of a party is suggested in Court, the clerk has no power to revive the action, either in favor of, or against representatives. But in this case, he first judicially decides that the defendant is dead, and then that Toulmin and Bates, junior, are his representatives, and makes them defendants, without giving them an opportunity of contesting either of-those facts. The uniform course in a court of justice, is, upon the suggestion of the death of the defendant, to issue a scire facias against such persons as from the production of satisfactory testimony, it appears, on this ex parte examination, are the representatives of the deceased, requiring them to shew cause at the next term of the Court, why the suit should not be revived against them. In what way the representatives in a case situated like the present one, are to be made parties, I have not had an [464] opportunity of examining into authorities to enable me to determine, nor have authorities been cited by counsel; but I am inclined to the opinion, that application should, in the first instance, be made to this Court; either upon the suggestion of the death of the defendant below, and exhibition of a copy of the letters testamentary or of administration, and a copy of the record in the cause, to move for a scire facias against the representatives, to shew cause why they should not be made defendants, and a writ of error awarded from this Court to the Court below; or by a motion founded on the production of such evidence, for a certiorari to bring the proceedings of the Court below into this. Court. I am also of the opinion, that the service of the citation is insufficient. It cannot be considered as the acknowledgment of service by Toulmin, for it does not even appear that he is the man against whom the citation issued; and if that is admitted, he has only acted officially in all that he has done. A citation may justly be considered as process, and when process issues against a sheriff, it should he directed to the coroner; when this is not the case, but it is directed to the sheriff, against whom it is issued, something must be done equivalent to a waiver- of all benefit from the irregularity, before the Court will consider the party as consenting to. be affected by such process. No such inference can be made from the circumstances of this case. The Court unanimously agree that the writ of error should be quashed.