Kelly v. Hooper's Ex'rs

When a party dies during the pendency of the suit, and a judgment or decree is rendered without any notice of the party’s death being taken in the proceeding, the judgment or decree is void for want of jurisdiction. Upon a suit founded on such decree, the want of jurisdiction in the court rendering the decree, may be taken advantage of by plea, if it do not appear upon the face of the record. Courts of this state will look into the records of courts of another state, to see if they have jurisdiction, whether brought be- ■ fore them upon the face of the record or by plea. The statute of 1789, ch, 23, sec. 4, forms a bar to any action or suit against an administrator or an executor in two years, if a resident of the state, and three years, if a resident of another state. This is an action of debt brought- upon the record of a decree pronounced in the chancery court of Mississippi. The first plea filed is, that the suit was barred, not having been brought in three years after the death of defendant’s testator, under the act of 1789, ch. 23, sec. 4. The fourth plea in the record is, that the defendant died on the 8th daj of July 1825, and that the decree Up0n which this action is founded, was pronounced the 2d Monday of July 1827, more than two years after the death of the defendant. To both these pleas there are general demurrers. The circuit court overruled the demurrers, and gave judgment for the defendant.