Tucker v. Wilson
Tucker v. Wilson
Opinion of the Court
delivered the opinion of the court.
The suit begun by the complainants in 1870 was not abated by the death of the next friend by whom they sued, nor by the fact that the complainants attained their majority after suit brought. There was no necessity for a bill of revivor. All that was required Avas for them to appear in the suit as adults and prosecute it. The paper .exhibited by them as a bill of revivor was a very proper mode of bringing to the notice of the court their wish to appear in
The sale of the land by the trustee, and its purchase by the defendant, made no change in the rights of parties. Mrs. Wilson, as a party, was bound to know that the blunder by Avhich ease No. 636 was dismissed did not in any manner affect the real case, No. 564, which was properly before the supreme court, and was disposed of by it by reversing the decree, overruling the demurrer and requiring an answer in forty days. If a stranger to the record could claim to have been misled by the mandate sent out after the dismissal mentioned, she could not.
The suit brought by the complainants in Union county, and which upon demurrer was dismissed, without prejudice, and the action of ejectment they instituted and dismissed, had no effect whatever on this suit. These fruitless efforts show a want of a proper conception of the right course for .the complainants to pursue for their advantage, but do not furnish a reason for precluding them fi’om proceeding in the right way they have now discovered and undertaken to pursue. The case is to be proceeded with just as if the judgment of this court rendered March 24,1873, had been promptly certified to the chancery court of Lee county. Mrs. Wilson will be allowed to answer the original bill as she might have done eighteen years ago. She might then have paid the costs of this court adjudged against her and co-defendants, and have speeded the cause, but having allowed it to remain in statu quo so long, she must now meet the case made by the bill. Reversed and remanded for an answer to the bill in thirty days after mandate filed elow.
Reference
- Full Case Name
- J. S. Tucker v. M. E. Wilson
- Cited By
- 8 cases
- Status
- Published
- Syllabus
- 1.Abatement. Suit by infants. Death of next friend. Revivor. Limitations. Minor complainants by next friend appealed in 1873 from a decree sustaining a demurrer to their bill, and the decree was reversed at defendants’ costs and answer required. The costs were not paid, and no mandate was issued. The next friend died, and no steps were taken in the cause for fifteen years. Complainants, being all of age, some of them for more ' than ten years, filed their bill against the same defendants to revive the original suit. Held, that the suit was not abated by the death of the next friend, or by the coming of age of complainants, but, as between the parties, continued a pending suit; no statute of limitations being applicable. 2.Same. Death of next friend. Revivor. When necessary. Under such circumstances it was not necessary for complainants to file a bill of revivor, but only to appear and prosecute, as adults, the original suit. But such bill, though not necessary, was proper as a method of notifying the court of complainants’ intention to prosecute such suit, and as giving defendants notice, that they might answer as ordered by the supreme court. 3.Same. Res judicata. Former trial not on merits. The right of the complainants to intervene and prosecute in their own right such suit begun by their next friend, was not affected by a decree dismissing, without prejudice, a chancery suit brought by them against the same defendants to cancel their claim to the land, or by the abandonment by complainants of an ejectment suit brought to recover the land ; these suits having been brought under a misconception of the course proper to be pursued. 4.Same. Purchase lis pendens. Case. A sale by the trustee of the land, the subject of the original suit, and its purchase by the beneficiary after the appeal, both being parties to the suit, conferred no additional rights ; although, in making the sale, they were misled by a mistake of the clerk of the supreme court in twice docketing the cause, and in certifying in a mandate that it had been dismissed for want of prosecution, whereas it had been elsewhere properly docketed and the decree reversed. 5.Same. Special statute of limitations for Union county. Act 1882, p. 282. Such purchaser, pendente lite, cannot, because of her occupancy and use of the- land as a farm, invoke against the said complainants the special statute of limitations of five years, passed in 1882 (Laws, p. 282), to ‘ ‘ remedy the evils occasioned by the burning of the court-house of Union county.”