Christian & Craft Co. v. Dantzler Lumber Co.
Christian & Craft Co. v. Dantzler Lumber Co.
Opinion of the Court
delivered the opinion of the court.
This is an action of assumpsit, instituted by five persons jointly against the defendant for the recovery of $1,005.47.
1. The judgment is not defective because of want of an order of revivor in the name of Mr. Buddig’s administratrix. . If such revivor were necessary, the right to it was waived by the defendants in not objecting to proceeding to trial unless such revivor was made. That a revivor is not necessary in such cases is supported by Gould on Plead., sec. 61, ch. 4. That the taking of a judgment without a revivor is a mere irregularity, and that the want of a revivor is waived by not objecting in the trial court, is supported by good authority. Code, § 664; Rice v. Shute, 5 Bur., 2613; Boson v. Tanford, 2 Salk., 440, note a.
2. The testimony of Shaw, the nonresident witness, should have been taken by the defendant before the sitting of the court. The absence of this witness, at the trial term of the court, was not a matter of which the defendant can complain of the.plaintiffs. The absence of the witness was, in our judgment no ground for a continuance, and the action of the court in that regard is not erroneous.
Affirmed.
Reference
- Full Case Name
- Christian & Craft Company v. Dantzler Lumber Company
- Cited By
- 3 cases
- Status
- Published
- Syllabus
- 1. Assumpsit. Joint plaintiffs. Death of one. Revivor. Waiver. Where a defendant in an action of assumpsit has gone to trial without objection on account of a failure to revive in the name of the legal representative of one of the plaintiffs, who has died since the institution of the suit, the irregularity, if such it be, will be treated as waived. 3. Same. Revivor not required. A revivor in the name of the administrator of one of several plaintiffs in assumpsit, who has died since the institution of the suit, is unnecessary to the prosecution of the cause to judgment. 3. Same. Supreme court practice. In an action of assumpsit by several plaintiffs, if one of them die, and judgment be taken in the names of the living plaintiffs and the administrator of the deceased, such judgment will not be reversed by the supreme court because there was no formal revivor of the suit in the name of the administrator. 4. Witness. Nonresident. Continuance. A continuance of a cause cannot rightfully be demanded because of the absence of a witness who resides out of the state.