Hill v. Bryant

Riddick, J., (after stating the facts.) It is contended by petitioner that the verdict of the jury and the judgment of the circuit court ordering the suit first brought by Pipkin, as administrator, abated, must be treated as in effect a judgment at bar. We do not agree with this contention. It may be true, as contended, that petitioner, to defeat that, action,'set up in effect the ancient plea of ne unques administrator, and we may even concede such a plea to be a plea in bar, but the finding of the jury does not sustain it. An essential part of such a defense to defeat an action like the one brought by Pipkin, as administrator, is the allegation that the plaintiff “is not now and was not at the commencement of this suit administrator,” etc. 3 Chitty’s Pleadings, 941. The answer of Hill alleged that the letters of administration granted Pipkin were void, and had been so declared by the court that issued them, and that he had never been legally appointed administrator. It, in effect, alleged that Pipkin was not administrator then, nor such at the commencement of the action. But the finding of the jury does not support the allegation that Pipkin was not administrator at the time the suit commenced. On the contrary, they found that he was such administrator, but that his letters had since been revoked. In other words, that his powers as such representative had ceased. This finding of the jury and judgment of the court that Pipkin’s powers as a personal representative had ceased after the commencement of the action, brought the case squarely within the scope of sec. 5925 of Sand. & H. Digest. That section is as follows : “When one of the parties to an action dies, or his powers as a personal representative cease before the judgment, if the right of action survives in favor of or against his representatives or successors, the action may be revived and proceed in their names.” Pipkin, being afterwards reinstated as such administrator, became his own successor ; and we think the court properly held that the action might be revived, and proceed in his name as administrator of Frnest. We have not cpnsidered the question whether, even had the order of revivor been improperly made, the writ of prohibition would have been the proper remedy. For the reasons above stated, the petition for such writ must be denied.