Lowenberg v. Tironi

Cooper, J., delivered the opinion of the court. Tironi sued out an attachment before a justice of the peace against one King, which was levied on certain property. King appeared and filed a plea in abatement to the writ, on which issue the plaintiff had judgment, and also recovered a judgment on the merits. King appealed the case to the Circuit Court of Warren County, and died. Before the appointment of an administrator of his estate, the plaintiff submitted the issue on the plea in abatement to a jury and had verdict that the attachment was rightfully sued out. Afterward Lowenberg was appointed administrator of King and the plaintiff sued out a soire facias to revive the suit against the administrator in order that he might proceed to final judgment against the estate. The administrator pleaded to the writ that Tironi had proceeded to try the is'sue on the plea in abatement before the appointment of an administrator of the estate of King and had thereby lost all right to proceed further in that -suit to recover a judgment in personam. On demurrer the plea was held insufficient, and the administrator declining to plead further, judgment was rendered against him and the sureties on the appeal bond for the plaintiff’s claim. By § 2466 of the Code it is provided: “ If the defendant shall die after service of the writ of attachment, the action shall not thereby be abated, but shall be carried on to judgment, sale, transfer, and final determination, as if the defendant were still alive and such death had not occurred; and all proceedings and conveyances in such cases are hereby declared to be as valid and [22] effectual in law as if had and made in the lifetime of the defendant.” It is contended, on the part of the appellant, that the statute quoted gave the plaintiff the right of converting the proceedings into a suit in rem, and of proceeding to final judgment in the absence of any representative of the estate, in which event only the property seized would be subjected to the judgment, but that he cannot proceed under the statute until after judgment on the plea in abatement, and then revive against the personal representative with a view of obtaining a general judgment against the estate. This argument is supported by the language of the court in Holman v. Fisher, Exe’r, 49 Miss. 472, but the court then wa3 dealing with a case in which no administrator had ever been appointed of the estate of the defendant. The sole question in the case was whether without revivor against the administrator of the defendant the plaintiff could take judgment against the garnishee. In saying that the death of the defendant put an end to the power of the court to render a personal judgment against him, it was only meant that no such judgment could be rendered in the condition of that particular case, viz., where no revivor had been had against the personal representative. But we see no reason why by taking judgment on the plea in abatement the plaintiff should be thereby debarred from afterward proceeding to recover a personal judgment after the appointment of an administrator. The statute gives him the right to proceed against the property attached without regarding the death of the defendant, but it does not declare that by so doing he shall lose the right of further prosecuting the case against the administrator when appointed. And where, as in this case, the appointment is made before final judgment, it is evidently to the advantage of the estate that the administrator should defend, since a judgment in his favor on the issue in chief would vacate the judgment on the plea in abatement. We are not to be understood as deciding that the plaintiff may take judgment final for the sale of the property attached, and at a [23] subsequent term of the court revive against the administrator for the purpose of obtaining another final judgment in order to go against the general estate. Judgment affirmed.