Carlisle & Keyser v. Rawlings

Scott, Judge,

delivered the opinion of the court.

David Carlisle and Rufus Keyser instituted a proceeding of forcible entry and detainer against the respondents, before a justice of the peace, from whom the cause was taken by a cer-tiorari to the Circuit Court, whence it was transferred by a change of venue to the Court of Common Pleas. Pending the suit, David Carlisle, one of the plaintiffs, died, and thereupon the respondents moved to dismiss the proceedings on the ground that they had abated by the death of one of the plaintiffs. This motion was sustained and the surviving plaintiff appealed.

1. There is no doubt of the rule of the common law that, in all actions, the death of one of several parties pending the suit, abates the action, though the property survive to the other, except in a few cases, none of which affect this question. This rule is now altered by statute, and the death of one joint plaintiff or defendant does not abate the suit, if the cause of action survive to the surviving plaintiff or plaintiffs. R. C. 822, sec. 1. The eleventh section of the third article of the act of 1849, provides that, when one or more of the plaintiffs or defendants die and the cause of action shall not survive, the suit shall abate only as to the person or persons so dying, and the surviving parties may proceed without reviving the suit. The fourth section of the fifth article of the act concerning justices’ courts enacts that, if there be two or more plaintiffs or defendants, and one or more of them die, the suit shall not *169 abate, but tbe cause of action shall survive to.the survivor or survivors, and such death being suggested, the cause shall proceed as though the death had not occurred. The thirty-third section of the second article of the act concerning forcible entry and detainer, provides that, when a cause shall be removed into the Circuit Court by certiorari or appeal, the court shall try the same anew, as though it had originated in such court. The respondents maintain, that the act concerning forcible entry and detainer is a system in itself, and cannot look to the aid of other laws in carrying it out,, and as there is no provision in the act, in relation to the abatement or revival of the proceedings, questions arising on these subjects must look to the common law for their solution. This argument cannot prevail. It would be exceedingly unsafe to adopt such a principle in the construction of our code. When a matter becomes the subject of special legislation, the provisions deemed appropriate to it are made, and the principles by which it shall be governed are prescribed, and the ordinary tribunals are entrusted with the execution of the law. In the exercise of the jurisdiction thus conferred, it has always been supposed that the court, in the conduct of its proceedings, would conform to the general law regulating its practice, unless there was something in the nature of the subject or 'some provision in the special law which would forbid such a course of procedure. Whether this action is regarded as subject to the control of the law respect-ting justices’ courts, or the law regulating the practice in courts of general jurisdiction, in either event, it is considered that the statutes above referred to would prevent its abatement. Under the twenty-fifth section of the second article of the act respecting executors or administrators, the cause of action would certainly survive to the administrator of the deceased plaintiff, at least as to some portion of the damages to be recovered. If the suit was abated, and the plaintiff compelled to begin again, he would recover only what he will recover in this action ; and the end to be obtained by putting *170 bim out of court cannot be discerned. Tbe spirit of tbe acts above referred to bas removed tbe technical ground which, at common law, would abate tbe suit.

The other judges, concurring, tbe judgment-will be reversed and tbe cause remanded.