Stephens v. Magor

Dixosr, C. J. The first question in this case is upon the order of the court reviving and continuing the action in the name of the plaintiff as administrator. The order was made upon motion, and an order to show cause. It is contended for the defendants, that the only mode of reviving a suit is that prescribed by chap. 363, Laws of 1860. It is argued on the other side, that the remedy there given is merely cumulative, and that the action may still be revived in the manner provided by sec. 1, chap. 135, R. S. This action was so revived. We are of the opinion that the remedy given by chap. 363 is cumulative, and that the proceedings had herein were regular. The objection that the plaintiff could not abandon his cause of action or ground of relief for a vendor’s lien, and take a judgment against the defendants personally for the sums found due upon the note, is, we think, wholly untenable. The two causes of action were properly united, and the complaint contained a demand for personal judgment as well as for the equitable relief. This was authorized by statute. R. S., chap. 125, §§29, 30. There was therefore no objection to the plaintiff’s abandoning one cause of action and taking judgment upon the other. The defendants cannot complain. And the judgment rendered at the term of the circuit court for Crawford county was regular. The statute provides that motions and demurrers, pertaining to actions or proceedings pending in the circuit court of any of the counties of the fifth judicial circuit, may be noticed for argument, heard and determined, at any [539] term of the circuit court in either of said counties, and that the judgment and orders thereon shall be entered in the records of the proper court, as of the term preceding their entry. Laws of 1865, chap. 133. The motion for judgment on the verdict was properly made, and judgment properly rendered. The judgment for interest after verdict to time of entry is an immaterial error. The defendants are not aggrieved, so long as they do not have to pay the interest but once. By the Court. — Judgment affirmed.