Herring v. Selden

Royoe, J. delivered the opinion of the Court. By the record -complained of, it appears that the suit below was instituted in as-sumpsit upon several promisory notes, and was prosecuted to final judgment in favor of Silas Richards and David Selden against file plaintiff in error,who now alleges, as matter of error in fact, that between the commencement of that suit, and the rendition of judgment therein, Silas Richards died; — for which reason he prays that the judgment may be reversed. The defendant has pleaded that there is no error in the record, which is admitted to be in the nature of a demurrer, and to imply a confession of the death of Richards, as alleged by the plaintiff in error. The joint cause of action in favor of Richards & Selden, was of a character which, by law, would at all times, upon the death of one of them, have survived to the other. But without the aid of statute, the death of one of the plaintiffs pending the suit, would have vitiated the whole proceedings' and judgment; so that at common law, filis writ of error would lie. Statutory provisions, however, have long existed on this subject’, the effect of which is, that on the death of a sole plaintiff or defendant, in a case where the cause of action survives, the suit may or may not abate, as die legal representative shall or shall not become a party to it; and that wjien one or more of several joint plaintiffs or defendants dies,the suit shall not abate,but proceed in favor of,or against, the survivors. It is true that the statute says, “ such death being suggested upon the record.” In this case, the death of Richards was not suggested on the record, and the whole question is, whether for that cause the judgment is erroneous, and must be vacated or reversed. A writ of error, like other process of the law, is intended for the relief of some injury or grievance, and supposes a defect or error in substance, in the commencement, progress or termination of some judicial proceeding, in a court of record. Now it is difficult if not impossible to conceive how the omission to suggest the death of Richards, could have affected any right of the surviving parties. And hence, as the statute has declared that the death of a co-plaintiff in such a case, [18] shall not defeat the action, it would seem that the only effect of sustaining this writ would be, that judgment in the original suit should be immediately entered up in favor of Seldon alone. The name of Richards must be regarded as surplusage in all proceedings subsequent to his death, as in the case of an execution issued in the joint names of several, when some of them have died after judgment. It is proper that upon tire suggestion of either party, this formal impropriety should be corrected, but the correction need not involve the overthrow of the first judgment. The judgment of the county court must therefore be affirmed in the name of Sel-den, and this supercedes the necessity of acting on the motion to amend. A. Foote and Adams, for fine plaintiff in error. Fan JYess and Thompson, for defendant in error. Prentiss J. being of counsel in the cause did not sit at the trial.