Licquet's Heirs v. Peirce

The opinion of the court, Portee, J. absent, was delivered by Mathews, J. This cause is brought up on a bill of exceptions, found at page five of the record taken to the opinion of the judge a quo, by which the defendant was ruled to trial, &c. It appears that the plaintiffin this action died after bringing suit, and after issue joined.- This circumstance would have [363] caused an abatement, but by leave of the court, her heirs or representatives assumed her place, and were made parties by a supplemental petition. The suppiemell_ hei^orireprSen! cease! 'pMntiff) of Se actíoTra-tlier than an to the pleadings, and ffoie the defen-notifiedbysS petition and S This petition was not served on the defendant, nor does it appear that any express notice of it was ever given to him. Notwithstanding these omissions the new plaintiffs proceeded to trial and submitted their cause to a jury, and obtained a verdict and judgment. When heirs or representatives of a deceased suitor pursue an action already commenced by their ancestor by reviving the judicial process, it may be considered, rather in the nature of a new suit, than an amendment to the pleadings in that previously commenced. In this respect, the article 113, of the Code of Practice, cited by the counsel of the appellees in his points, is applicable to the present case, but in no other. The article 419, relates solely to amendments which may be permitted after issue joined. If the supplemental petition be viewed rather as a revival of the action, (and in this manner we think it must be viewed) than an amendment to the pleadings, the defendant before he could properly be ruled to trial, ought to have been noti- # i fied of this revival, either by service of the new A and citation, or by direct and positive notice to his counsel (if such would suffice) in order to answer and plead de novo in such manner as the case might require. We are, therefore, of opinion, that the judge below erred in forcing the defendant to trial, in the manner in which it •was done. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided, reversed and annulled. And it is further ordered, that the cause be sent back to said court to be proceeded in de novo, according to law. The appellees to pay the costs of this appeal.