Vaughn v. Sturtevant

The plaintiff claims the benefit of certain provisions of the Revised Statutes which wore never intended for him, and are not applicable to his case. The plaintiff' having *374 sued out his writ of arrest against the original defendant, as provided in section 15, of Ch. 181, and the defendant not being to be found in this State, nor his goods or chattels within the officer’s precinct, his real estate was rightfully attached to answer the debt, and the plaintiff, so long as the original defendant remained a party to the suit, was entitled, under section 1 of the same chapter, to hold the property attached as security for his debt; and had the original defendant survived to final judgment, and final process had issued against him, the execution, under section 18, of Ch. 195, must have issued against the estate attached on the writ, by inserting therein the words, “ real estate attached.” This execution must, under section 18 of Ch. 181, have been levied on “ the property so attached.” All this the plaintiff would have been entitled to against the original defendant ; but when that defendant, by death, ceased to be a party to the suit before judgment therein, 'the plaintiff’s rights were essentially changed.

By the common law, the death of a sole defendant at any time before final judgment would have abated the suit altogether, and no judgment could have been rendered therein. The suit must have been dismissed, — any attachment made therein dissolved and lost, — and the plaintiff put to a new action against the executor or administrator of the deceased, in which the writ would authorize neither an arrest, nor an attachment of real estate. Erom none of these consequences is the surviving party saved except by the provisions of Ch. 161, of the Revised Statutes referred to: and these do not declare that the action shall not abate, or that it shall survive with all the incidents it originally had; but that, instead of being dismissed, it may be made to answer the purposes of the new suit which a dismissal of the action would render necessary. This is to be done by compelling the new parties necessary to siich new suit to become parties to this, and allowing the action then to proceed as if the suit had originally been between them, and the deceased had never been a party. Section 5 gives the executor or administrator of the deceased a right, and makes it his duty, to become a party. The next section enables the surviving party to summon in such administrator and thereby make him a party, and then provides, *375 that unless tbe estate shall have been represented insolvent, judgment, if it pass against the administrator, shall be entered up' against the estate of the deceased in the hands of the administrator, — the same judgment that would be rendered if the administrator had been a party originally, and not such as would have been rendered if the deceased had continued a party. It is then expressly provided, that the process upon such judgment, the final process in the suit, shall be the like process as if the action had been originally against, the administrator. Section 9 provides, what that final process shall' be in a suit originally commenced against an administrator, — that it shall run against the goods, chattels, rights and credits of the deceased only, in the hands of the administrator.

It is quite clear, that these -provisions save nothing of the-incidents of an abatement of the original suit, except that the action is allowed to proceed with the new parties, and in the manner prescribed. It is equally clear, that the lien now claimed by the plaintiff is not saved by these provisions, either expressly or impliedly, and that no execution can issue against the real estate of the original defendant which had been attached.