OF THE STATE OF ARKANSAS. 165 LITTLE ROCK, July, 1838. BENTLEY, EXTR. Os' BENTLEY against WILLIAM A. Dicssox. BENTLEY
VS. APPEAL from Conway Circuit Court. DICHSOR. An amended declaration filed in the court below without leave either asked or given to amend, is not Part of the record, and entitled to '110 attention; and it will be here presumed that upon demurrer to the declaration, the court below treated the amendment as a nullity,.and.consid ered the demur-rer as applying to the original 'declaration. When a suit is revived in the name of an executor or administrator, the pleadin g s stand in the Same attitude as before the abatement, and only the names c. t . the parties are chanaed upon the-record. It is a le g al fiction by which the pleadings, &c. are considered as being in the name o b f the execu-ter or adrninistrator: Debt is the proper aption on promissory note. This was an action of debt commenced in the court below . by appellant's intestate against the appellees. The declaration was filed to March Term, 1833, and alleged that the defendant had executed his writing obligatory to the plaintiff, for four hundred and five dollars, with a breach that he had " not paid the aforesaid sum of four hundred and five dollars, according to the tenor and effect of said writing obligatory, nor any part thereof, nor the interest thereon, nor any part thereof, though often requested." The defendant appeared, and at the September Term, 1833, the suit abated by the death of the appellant's testator; and after two sci. fa's had been sued out by the appellant and returned non est as to the appellee, the suit was rerived against him at February Term, 1835, and the suit waa continued to the next eerm, on the 17th of March, 1835. On thc day after, the following entry was made of record: " This day the plaintiff filed his amended declaration in this cause, and this cause is continued to the next term of this court." This . is the only notice taken of the amended declaration, previous to its filing. The amended declaration so placed among the papers, was in the name of the deceased tectator, and was otherwise entirely informal and insufficient. At the two next terms, the cause was continued by consent, and then a term intervened without a court, and at March Term, 1837, the defendant demurred, by consent, " to the plaintiff's declaration," and upon the demurrer judgment was rendered, that " it seems to the "court that the law is for the defendant. Whereupon it is considered "by the court that the plaintiff t g e nothing by his bill and the de-"fendant go hence without day, and the plaintiff for his false clamor
1643 CASES IN THE SUPREME COURT LITT" " ROCK, be in mercy, &c." From this judgment on the demurrer, the plain-July, 1838 ' tiff below appealed. BiNTLZY vg. TAYLOR and LiNTON, for the appellant: DIcZooD• The demurrcr was permitted to be filed at the term of the court subsequent to that at which the deelaration was filed, which is not allowed by law, and the rules of practice. See Statute, Digest. The original declaration was good : the second was superfluous, or at most but an additional count to the original declaration, and on either ground the demurrer ought to have been overruled. If there be one good count, it is sufficient. McCamp. Dig. 332. All matters of form disregarded. McCanzp. Dig. 344, Sec. 94. Suit was revived and no new pleading was required. McCanzp. Dig. 326. FOWLER, TRAPNALL and COCRE, contra: The amended declaration was throughout in the name of George Bentley, who had long been dead. It is contended by the appellee, that said demurrer was properly filed; and if there could have been otherwise any possible doubt as to its propriety or legality, the consent of the said appellant cures all such objections. And it is contended that it was properly sustained, because George Bentley was dead, and not a party to the action: therefore the declaration was improperly tiled in his name. It cculd only be filed in the name of thc plaintiff; who was then Eli Bentley—not George. The original declaration was voluntarily abandoned by the plaintiff: therefore, he cannot rely upon it, for any purpose whatever, in sustaining the amended declaration. The original itself is too bad, in addiiion to this reason, to stand either lzy itself or otherwise. But he having voluntarily avoided it, it does not now come before this court for consideration. TheicorsoN, Judge, delivered the opinion of the court: This was an action of debt brought by George Bentley, in his lifetime, against the defendant, in the Conway Circuit Court, at the March Term, 1838. The suit was revived in the name of Eli Bentley, as executorof George Bentley deceased. After its revival, it appears from the record that the' Executor filed an amended declaration in the name of George Bentley. The defendant also filed a geneial demurrer, which was sustained
OF THE STATE OF ARkANSAS. 167 by the court,' •and judgment entered thereon ;'from which the plain- r erTt.ts ROCK, tiff has peosecuted an-appeal to th i s ceurt. The 'record presents but juiy, 183R. one question for our consideration, and the decision upon it necessarily settles all the points raised Under the assignment of error: Was the D1.,. judgment upon.the demurrer rightfully sustained by the court below? The counsel of both parties appear to have taken a wrong view .of this case, and occupied a position in their arguments , not borne ()tit by the record. It is contended on the part of Dickson, that the amended declaration should have been in the name of the executor, and that it was to this declaration the" demurrer went, while, on the other hand, the executor insists that the declaration is good in substance, and cor-Tett as to form. Whether the court below considered the amendment as part of the pleadings, and the one•upon which judgment was given, we are unable to snY, but will presame ,they did not; for althoUgh we findthe amendMent, in the record, and in the name of the deceased , after the sui-had been revived by his executor; yet, it never was entitled. to any attention, either in this or the Circuit Court, as it does not appear that leave had . ever been asked 'or given, to amend.. , It is not only evidently *absurd, 'and inconsistent in its teems and. character, but irregularly and improperly filed: it could have no bearing upon the case, and though never actually stricken out, it would have been improper for the court to have looked into it. Taking the record, then, as- we are-bound to dO, for our guide to the 'course pursued by the inferior court, in relation to the poinfs assigned for error, we will presinne that the Circuit Court treated the second declaration as a nullity.; that discretionary power vested in the . Court as to_amend-meets, never having been exercised in authorizing the plaintiff to change, alter,. or amend his pleadings. - The act of the Legislature pasSed October 30, 1810, makes it the duty . of executors - and administrators to defend and prosecute all suits that survive to them, and gives them full power . for that purpose. See Digest. p. 326. When the suit is revived, all the pleadings stand in the same 'attitude, as if they had neVer been ibated by death: the names only arc changed upon the record, and it is a legal . fiction by. which . the, writ, declaration, plea, and other proceedings, ake sideied as there standing in the.name of the executor Oi administrator. • •- - This, 'it . i4 believed,. iS tie.'univerSal rule ... of, practice, •-and • ln strict -nctordauce , With the: prineipleCof . right:andjuttlee. - This case noW
168 CASES IN THE SUPREME . COURT 'LITTLE • . under tonsideratiorr; solar , itpcft, as regards the pleadings, standS in the same jily, 1E08. position before us as it did before the Circuit Court at the time of its reVival, and the declaration subsequently filed, being irrelevant and ich :L o c , , a mere nulhty by reason of its irregular-Up the demurrer must go . to
tbe declaration filed at the eommencement , of the suiL And it now remains for. us .to decide whether that declaratiorr is sufficient to enable the party to recover. The action is in debt, founded On a promissory note for " the sum of four hundred and . filie dollars, with interest to be compnted: after the date`of ten per Centum per annum, &Om the 8th day-of June, 1831, till paid.r We have carefully examined the declaration, and the aUthority,having any bearing upon the subject, and can , discoVer no well founded objection' to iL The breach, though somewhat improperly §et out, is, we think,sUffiCiently assigned.. Debt Was..the, proper action, it being for a sum :certain, Or which could be reduced to a certainty. The authorities on this point.are numerous and , conClusive. The objection made by the appellant's cOnnsel, that the demurrer ought to have been til , ed at the first term, it iS unnecessary -consider, as it 'appears to haie been filed by consent of parties, and generally to the dcclaratien. And throughout the whole record, there is no mention made of the second declaration, 'eicept that a copy of it is sent up to us in the recoril, and that is marked as filedon the 18th of March, 183.5. And in the who/e course of proceedings, there is no other mention made of it, by either the court or the parties. As, then, the demurrer could only apply io the declaration legally and regularly filed, twhich is the first,) and that is deemed good and sufficient, we are consequently brought to the conclusion, that the court below erred in.sustainiog the 4ernurrer. The judgment must, therefore, be reversed with costs, and the cause remanded to the Circuit Court of Conway, fOr further proceedings to be had therein, not inconsistent with this opinion.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.