Davis v. Shapleigh

Catón, C. J. The only question in this case is, whether the eighth section of our abatement law applies to proceedings by attachment. With some reluctance, we find ourselves constrained by the seventh and thirty-fifth sections of the attachment law, to hold that it does. The eighth section of the abatement law provides that where there is but one defendant in an action which might be prosecuted against heirs, devisees, executors or administrators, and he dies before final judgment, the action shall not thereby abate, but his death may be suggested on the record, and his proper representatives made parties defendants to the action. We appreciate the force of the objections which were urged against applying this section to attachment proceedings, and were we not controlled by what we consider the peremptory requirements of the statute, clearly indicating, as we think, the intention of the legislature, that it shall bo applicable, we should be inclined to hold that an attachment is abated by the death of the defendant before judgment. The seventh section of the attachment law, after specifying by what names defendants may be sued by attachment, proceeds: “And heirs, executors and administrators of deceased defendants shall be subject to the provisions of this chapter in all cases in which it may be applicable to them.” Now this shows that it was the intention of the legislature that the decease of the defendant should not necessarily abate the proceeding, for it provides that their representatives shall be subject to the provisions of the law whenever it is applicable to them. Without stopping to explain what is meant by the term “ applicable to them,” it is clear that it was the purpose of the legislature that attachment suits might, in some cases at least, be continued against them. It certainly was not the design of this provision to give an original attachment against them, otherwise it would have used the word debtor, instead of “ defendant.” No man could die a defendant unless the proceeding was pending against him at the time of his death. But even if we could get over this seventh section, the thirty-fifth section presents an insuperable difficulty. It is this: “ The provisions of chapter one, of the Revised Statutes, shall be applicable to proceedings in attachment, as to other cases.” That chapter one is our abatement law, to the eighth section of which we have already referred. It is but begging the question to say that none of the provisions of that chapter are applicable to attachment proceedings. The legislature has said that they shall be applicable, and so we are bound to apply them in some way, and with such application make it work as harmonious as we can. There is no avoiding this mandate of the law, except by repealing it, which we have not the authority to do. The judgment of the Circuit Court must be affirmed. Judgment affirmed.