Phares v. Saunders's Adm'r

JOHNSON, President, announced the opinion of the Court: The first question presented in this case is: .Could the petitioner obtain a writ of error to the judgment upon his petition showing, that his intestate died after the judgment was recovered, the plaintiff not having revived the suit'? The petition alleges, that since the rendition of the judgment the defendant, Saunders, has died, and that the petitioner has been appointed by the county court of Pendleton county administrator of the estate of the said defendant. These facts could have been controverted here by the defendant in error, but they have not [341] been controverted and must be taken as true. It is true, that it is a general rule, that no person can bring a writ of error, who is not a party or a privy to the record; but the right to bring the writ of error in case of the death of the party, against whom the judgment was rendered, will be in the personal representative without a revival of the judgment, because the personal representative stands in the shoes of the deceased and has the same rights, as his intestate bad, with reference to the judgment. 1 Lomax on Executors 539, and cases cited. It would be strange, if this were not so. The administrator cannot revive the suit in the court below ; and the denial of his right to his writ of error before revival might entirely defeat his right to a revival besides delaying him for an indefinite time in settling his administrative accounts. The statute of limitation bars a writ of error in five years from the date of the judgment, anda scire facias in ten years. In this state of the law the plaintiff in the judgment might wait until the five years had expired, so as to bar a writ of error, then revive the judgment and thus deprive the administrator of any right to ha.ve the case heard and reversed in the appellate court, or at least render it doubtful, whether he could do so. Should the judgment be reversed? The special pleas copied by the clerk and certified as being filed in the papers and so endorsed by the clerk are no part of the record, there being no order of the court filing them. Sims v. Bank of Charleston, 8 W. Va. 274; Cunningham v. Mitchell, 4 Rand. 189. The judgment is joint, and from the nature of the bond sued on and the fact, that the suit -was brought against both, if both were served with process or appeared, there could not be a several judgment rendered against them, where neither party pleads matter, which goes to his personal discharge. Snyder v. Snyder, 9. W. Va. 415. But in this case there was no service as to Eagle, and no plea as to him, and yet it appears, that he with the other defendant moved for a new trial and excepted to the instructions for plaintiff. If he had been served with process or pleaded to the action before trial, there ought to have been judgment entered in the case. If he was a non-resident, as the order of publication shows, -then there should not have been a personal judgment against him without his appearance. [342] The record in this case is in the utmost confusion from beginning to end. The declaration was filed at July rules, 1868, and the plea of payment as to Saunders was filed on the 5th day of June, 1868, a month before this declaration appearing in the record was filed, showing it could not refer to that declaration. .No special pleas were filed, as far as the record shows, yet all the instructions given on the trial relate to special pleas, which the court assumed were in the record ; and the evidence certified shows, that it was taken with reference to special pleas, which are assumed to have been in the record ; and finally a joint judgment was entered, when one of the defendants does not appear to have been before the court. In this confused state of the record it is very evident there was no fair trial ofthe case. Griffie v. McCoy, 8 W. Va. 201. The judgment must be reversed with costs to the plaintiff in error, and the verdict of the jury be set aside, and a new trial be granted, the costs in the court below to abide the result thereof; and the case must be remanded to the circuit court of Pendleton county for a new trial to be had therein, with leave to the defendants to plead anew. Judges Hayhond and GreeN Concurred. Judgment Reversed, Cause RemaNded.