70 CASES IN THE SUPREME COURT [27 Ark. Trapnall & Trapnall v. Terry & Steele. [DECEMBER TRAPNALL & TRAPNALL v. TERRY & STEELE. Scum FACIes—Nature of, when denturrab ie.—The writ of scire facias cupies the place of both declaration and writ of summons, and when the facts, set up in the writ, are not ' sufficient to show a cause of action, a demurrer would be a proper response. When inotton to quash.—Where there is no record in the court, as a foun-• dation.upon which the writ could properly issue, it is such a. matter in abatement as might be reached by motion, and a party is not necessarily compelled to resort to a plea of nul tiel record. APPE.AL FROM PULASKI CIRCUIT COURT. HON. JOHN WHYTOCK, Circuit Judge. Ringo and Clark & Williams, for Appellants. Under our statute, the death of a sole plaintiff or defendant does not abate the suit, but the party, in whom the action survives, may continue the cause, by an order of court, substi- • tuting himself. Digest,' Chap. 1, Sec. 7 ; after quashal of the scire facias (which we submit was erroneous), the ' court, Under the subsequent motion made for that purpose, should have required the defendants to show cause why the appellants should not be made parties. Noland vs. Leech; exr's., 10' Ark.., 504. The order, of 25th April, 1866, was not such a final judgment of dismissal, as could not be revoked or set 'aside at a subsequent term. It was a nullity; both the plaintiffs were dead—it was not a judgment on the merits dismissing the case. The case of Harrell et al. vs. Mason, 9 Ark., 406, 'relied on by the . appellees, is not applicable—is not law. Gleason vs. •Car-ter, 28 Geo., 516; Gowenys vs. Loyd, 4 Texas, 483; Rumbels vs. Jones, 3 Ind.: 35; Parker vs. Badger, 6 Foster (N. 71), 466. Meade vs. Rutledge, 11 Texas, 44; Denni,son vs. Holliday, 38 Eng. Law. and Eq. 496; Venable vs. Smith's Eer., 1 Duval: (Ky), 195: The case of Hubbard vs. Welch, 11 Ark., 151, cited by appel-lees, is not in point—it was a judgment upon the merits—and
27 Ark.] OF THE STATE OF ARKANSAS. 71 TERM, 1871.] Trapnall & Trapnell v. Terry & Steele. so with all the cases. They are all judgments . upon the merits—none other have ever been held conclusive. See Brooks vs. Hananer, 22 .4rk., 174; Rector vs. Danley, 14 Ark., 304; Pulaski County vs. Lincoln, 13 Ark., 103; Smith vs. Danley, 2 Ark., 66; Walker et al. vs. Jefferson, 5 Ark., 25; Ashley vs. Hyde & Goodrich, 6 Ark., 101;. Rawdon. Wright & Hatch vs. Rapley, 14 Ark., 203; Cossitt vs. Biscoe, 12 Ark., 95; Yell vs. Outlaw,'1.4 Ark., 621; Cunningham vs. Ashley, 16 Ark., 181. Gallagher, Newton & Hempstead, for Appellees. The order and judgment of the court, 'dismissing the cause, could only be reached by. appeai or on error. 6 Eng., 519 7 Eng., 218; 18 Ark., 53; 21 Ark., 117. Seco;zd, The term having passed, the court no longer had control of the matter. 1 Eng., 282; 5 Ark., 709; 14 Ark:, 203; lb. 568; 1 Eng., 100; 7 Eng., 95; 22 Ark., 176. Third, If the judgment was void, it should have been reached by writ of error coram nobis. Hempstead U. S. Ct. Ct. Rep. Dist.' Ark., p. 699. Fourth, By analogy of Statutes of timitations, as to writ of error, 'three years, or proper construction of section 94 Gould's Digest, parties were barred. GREGG, J.—On the 31st day of May, 1869, the appellants, by attorney, appeared in the Circuit Court and represented that after the institution of ' a suit in ejectment, in that court, against said defendants, by Martha F. Trapnell and Mary R. Trapnall, tbey had departed this life; that the suit had thereupon abated and the property descended to these appellants by inheritance; and they moved the court for orders and process proper, to revive the action in their names, and that a writ of scire facias issue, whiCh was ordered returnable to the next term of the court. On the 14th, of December, 1869, the defendants appeared and filed their motion to quash the scire facias, alleging: First, That the ' writ was riot moved for in time.
72 CASES IN THE SUPREME COURT [27 Ark. Trapnall & Trapnall -v. Terry & Steele. [DECEMBER Secondly, That the writ shows, on its face, that the plaintiffs are not entitled to have the action revived. Thinlly, That there is no such suj.t pending in court, as the one described in the said writ. Fourthly, The writ is otherwise bad, etc. On the 2d of February, 1870, the court sustained the motion and ordered that the case be stricken from the docket.. On the 8th of the same month, the plaintiffs filed a motion to set aside the order last referred to and to revive the suit, which motion was taken under advisement until the next term of the court. On the 2,9th of June, 1870, the parties appeared and the court overruled the motion, and adjudged that the defendants go hence and recover their costs; froin which judgment the plaintiffs appealed to this court. • As a basis, for the proceedings on the • scire facias, it is shown, upon the record, that on the 6th day of August, 1861, th . e parties alleged to have died, filed their declaration in eject-ment against the defendants, in the Pulaski Circuit Clerk's office, and, on the 28th of September ,of that year, the parties / appeared in the then Circuit Court of 'that county, and, by consent, the case was continued. The next that appears is an order of the Circuit Court, of said county, made on' the 25th of April, 1866, striking the case from the docket for the want of jurisdiction, the proceedings haVing been instituted after the ordinance of secession and before the reorganization of the State Government; then follows the proceedings as above indicated. The counsel, for the Appellants, insist that upon the motion to quash the writ of scire facias, nothing can be looked to but the face of the writ. They assume that the motion, like a de-murrer, goes alone to the sufficiency of the writ upon its face IN T,e are not prepared to concede this to its fullest extent: the motion is more nearly allied to a plea in \abatement than a demurrer. The writ of scire facias occupies the place of both decthratien and writ of summons.
27 Ark.] OF THE STATE OF ARKANSAS. 73 TERM, 1871.] Trapnall & Trapnall v. Terry & Steele. if the facts, set up in the writ, are not sufficient to show a cause of action, a demurrer would be a proper response. But if the scire facias , should requite defendant to answer in a suit, entirely ,and radically different from the one that had been in prosecution before the court, or require him to show cause why an action should not , be revived, when in fact no action . had ever been brought again -st such defendant, we see no reason why a motion, in the nature of a plea in abatement. might not be sustained. The eourt judiciously knows its own records, and it appears to us, if there is no record in the court, as a foundation upon which a writ could properly issue; it is such matter in abatement as might be reached by motion, and that the party is not neces5arily compelled to resort to a plea of nul tier record; such would be an improvident issue of a wiit and the court might even, on its own motion, quash such writ. The third ground set up in the motion to quash was, that "There is no such suit pending in court, as the one described in the writ." We are of opinion that the records, before the cOurt, justified the finding, and that there was no error in quashing the writ. The judgment of the Circuit Court is affirmed.
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.