Bailey v. Smith

Martin, J.,

delivered the opinion of the court.

The plaintiff sues for the price of a lot of ground, and on his suggestion that the defendant was an absentee, a curator ■ad hoc was appointed to defend him. The -answer of the curator ad hoc states, that Smith, the defendant, repaired a dwelling house on the lot, and that the plaintiff, in his absence, entered on the premises and sold the house, which ■ was worth more than the price for which the lot had been sold.

The general issue was also pleaded, and the answer concluded by a plea in reconvention for damages occasioned by the unlawful conduct of the plaintiff, in thus entering on the premises and disposing of the house.

The plaintiff having died, and the administration of his succession being committed to his widow, she was made a party to the suit. There was a verdict and judgment for the defendant who was quieted in his possession, and two hundred and thirty dollars were allowed him on his plea of .recon-vention. The administratrix appealed.

Her counsel assigns as error, on the face of the record,^ that judgment was rendered against her without citation, and when there had been no judgment by default, and when no revival of the suit after the death of the plaintiff, in the name of his heirs and legal representatives had been legally ordered and carried into effect.

At the November term, 1836, of- the District Court, the •death of the plaintiff having been suggested, it was ordered that this suit be revived in the name of his heirs and legal representatives, A copy of this order was served on the ■administratrix, by the sheriff.

Where the plaintiff’s death was suggested ■after issue joined, and an order of revival was made in the name of his widow, who was administratrix and his legal representative, which order was duly served by the sheriff: //eld, that there was no need of citation to issue, as the representative had full notice of the suit. If the plaintiff dies after issue joined, a citation is unnecessary, as that would be the commencement of a suit, which does not abate in this case. No judgment by default is required because issue was already joined. The demand of the plaintiff and the plea in reconvention, should be determined by the same judgment: so, where the plaintiff dies after a reconven-tional demand is put in by the defendant, the case will not be transferred on that account to the probate court, but may be acted upon partly as compensation in ciaim° and partly as a judgment against himinreeonvention.

*510 When the cause was called at the April term;'1838, for trial, and after the jury brought in their verdict, the admi-nistratrix, who does not appear to have been in court before, appeared and moved for a new trial, on the ground that she had not made herself a party to the suit, and that it bad been tried without any issue having been made between herself as administratrix, and the defendant.

The record shows, that an order was made for the revival of the suit, which was served on the administratrix, who was the legal representative of the deceased. There was no need of a citation, for the deceased was tbe plaintiff, and tbe representative was brought in, in that capacity. It was sufficient that she had notice of the suit, and of the order of revival. The citation is the commencement of a suit; and the Code of Practice, article 361, expressly provides, that “ if, after issue joined, either tbe plaintiff or defendant dies, it is not necessary to re-commence the action.” No judgment by default was necessary, because issue was already joined.

On the merits, nothing shows that the verdict of the jury ought to be disturbed. We have doubted whether that part of the case which relates to the reconventional demand, ought not to have been transferred to the Court of Probates, on the death of the original plaintiff whose estate was in a course of administration in that court. The original defendant had become plaintiff in the reconvention, and raised a claim for money against tbe estate, of which tbe Court of Probates has exclusive jurisdiction. We have considered that the Code of Practice requires that the demand of the plaintiff and plea of reconvention, should be determined by the same judgment; and that in the present case, the recon-vention was offered, and acted upon by the jury,-partly as a compensation reducing the claim of the plaintiff, and partly as a demand for judgment against him for the balance. The plea of reconvention was properly acted upon in tbe District Court, as a matter of compensation, and so far, could not have been transferred to the Court of Probates. It would have been incongruous to split tbe reconvention into two parts, to be acted upon in two courts. This reason, *511 added to the requisitions of the Code of Practice, that there should be but one .judgment on the original demand and the reconvention, has led us to the conclusion, that the District Court correctly acted on both.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.