Higgins v. Rockwell.

Charles Freeman, being partners, made and delivered a note of their firm to the plaintiffs, which is wholly unpaid. That subsequently Charles Freeman died, and that "said Phineas Freeman and James Rockwell have been duly appointed joint administrators of all his estate and effects."

It prays, "that the defendants be adjudged to pay the plaintiffs" the amount due on the note, with the costs of this action. The defendant Rockwell has not been served with the

summons.

The defendants have both appeared and united in an answer, which states, first, that they do not know whether the plaintiffs own the note, or are entitled to have and demand payment of the same. Second, that Phineas Freeman survived Charles Freeman, is still living, and resides in the city of New York; and objects that this action cannot be maintained against them as administrators, by reason of anything stated in the complaint, while said Phineas so survives.

To their answer they annex a notice, that they will prove on the trial, that there are other unpaid debts of the same class.

The plaintiffs move to strike out all of the answer except the first part, which puts in issue plaintiffs' ownership of the note, or that it should be so altered "as to stand for the answer of Phineas Freeman, the defendant served."

The answer appears to have been drawn under the idea, that this action is one against both defendants as administrators, and only that; and their counsel contended on the argument, that it could not, when fairly construed, be regarded as an action against Phineas as survivor, and also against him and Rockwell as joint administrators.

The plaintiffs' counsel insists that it is an action against Phineas as survivor; that Rockwell is made, nominally, a party as administrator; that he has no right to appear and answer until served with the summons; that if the court thinks he could not properly be made a formal party, his name should be stricken from the pleadings, and if he can be, that then the part of the answer to which the motion relates should be stricken out.

The complaint contains every averment necessary to a good complaint against Phineas Freeman as survivor.

Higgins v. Rockwell.

It also avers the death of Charles Freeman; the due appointment of both defendants as his joint administrators; and prays a judgment in personam against both defendants.

It was well settled, prior to the Code, that if one of two joint debtors died, an action at law would only lie against the survivor. (1 Chitty's Plea. 57.)

If the executors or administrators of the deceased party were sued, they might plead that the debt was a joint one and the survivorship of the other debtor, or give it in evidence under the general issue. (Grant v. Shurter, 1 Wend. 149.)

In Marshall & Jenkins v. De Groot, administratrix (1 Caines' Cases in Error, 122) a bill was sustained against the administratrix of one of three joint debtors who died solvent, after the remedy at law had been exhausted against the survivors, who were insolvent.

There is no allegation in this complaint of the insolvency of the survivor, Phineas Freeman.

No facts are stated on which an action can be maintained against the administrators, as it appears on the face of the complaint that Phineas Freeman is surviving. This objection cannot be taken by answer, because it appears on the face of the complaint. (Code, § 147.)

If it is improper to make the survivor and the representatives of the deceased debtor parties to the same action, or to unite a cause of action against one of them as a contracting party, with one against the representatives of the other joint debtor, as such, then these defects appear on the face of the complaint, and can be taken advantage of only by a demurrer. (Code, §§ 144, 147, and 148.)

I think the plaintiff is wrong in the position, that a person named as defendant, and against whom personally a judgment is prayed, has no right to appear and answer until he has been served with a summons.

The Code declares the voluntary appearance of a defendant equivalent to personal service of the summons on him. (Code, § 139.)

This assumes that he has a right to appear. It subjects him to the same liabilities as if personally served with process, and it would be a strange construction of this part of the Code that

Higgins v. Rockwell.

should hold, he did not thereupon acquire all the rights of a party actually served.

The practice was settled in chancery in accordance with the view here expressed, and numerous cases on the subject are collected in Vol. i of Barb. Ch., p. 81, under the head of "Appearance Gratis."

If on the facts stated in the complaint, no action can be maintained against either defendant as administrator, this objection is not waived by omitting to demur (Code, § 148), but may be taken at the trial.

it

The plaintiff should be permitted to amend his complaint, by striking out the name of Rockwell as a party, and also the part of it averring the grant of administration, and by praying for judgment against Phineas Freeman only.

And all the answer should be stricken out, except that part which attempts to put in issue allegations of the complaint. The only questions are, on what terms the order should be made. The defendants have put in an answer not recognised by the Code.

It does not controvert any material allegation of the complaint. The complaint avers that the firm made the note payable to their own order, and endorsed and delivered it to the plaintiffs; and that "the plaintiffs are now the lawful holders and owners of the note."

The answer does not controvert the facts that the firm delivered the note to the plaintiffs, and are now the lawful holders of it. It says the defendants have not any knowledge or information sufficient to form a belief whether the plaintiffs are "the owners of the note," and " are justly entitled to have and demand payment of the same."

If this were the whole answer, it would be clearly frivolous, as the uncontroverted allegations show possession and property in the plaintiffs.

If Phineas Freeman had been sued alone, and this had been the whole answer, the plaintiffs would be entitled to judgment on it as frivolous.

But as Rockwell was made a party, and had a right to appear, and has appeared, I do not see how the court can avoid giving him his costs of the action. But I do not think he should

Jay v. Martine.

have any costs of this motion. could not properly be interposed.

The answer was one which

The order to amend the complaint, and strike out parts of the answer, may be entered, directing the plaintiff to pay Rockwell's costs of the action, but without costs of this motion to either party.

JAY V. MARTINE.

An execution upon a judgment cannot be issued upon the application of the executors of a deceased plaintiff.

Sections 283, 284 of the Code, are only applicable when the parties to the judgment are living.

The proper remedy for enforcing a judgment, by the personal representative or assignee of a deceased plaintiff, is by action under § 428 of the Code.

(June Special Term, 1853.)

BOSWORTH, J.-The plaintiff recovered judgment in this action, on the 18th of February, 1840, for $293.53.

On an affidavit of his subsequent death, and that no part of the judgment has been paid, his executors, on notice to the defendant, moved for an order that execution issue on the judgment. Can leave to issue execution, in such a case, be granted on motion? I think not, but that the executors must bring an action, praying the same relief as was formerly granted in a proceeding by scire facias.

Prior to the Code, if an execution was not issued within two years after judgment rendered, a plaintiff was obliged to resort to a scire facias to obtain execution, although the plaintiff and defendant were both living (2 R. S. 576, § 1).

This necessity is obviated by §§ 283 and 284 of the Code. Those sections, I understand to be applicable to those judg ments only, to which the parties are all living. In all such cases, an execution will be allowed to be issued on motion.

In the matter of Walker.

Prior to the Code, if a plaintiff or defendant in a judgment died, before execution issued, none could issue until it was revived by scire facias, in favor of, or against the representatives of the decedent. An execution cannot be issued in favor of or against a dead man. It cannot issue in favor of the representatives of a deceased plaintiff, until there is a judgment to authorize and support it.

Their title to the judgment, and to enforce it, is to be established, not by motion, but in an action, under chap. 2, title 13, of the Code, § 428.

If §§ 283 and 284 are restricted to the parties to the record, there is not much opportunity for abuse, even though leave be sometimes granted on publishing a notice. The right of the party moving to be paid the amount of the recovery, and the liability of the defendant to pay it, are established by record evidence. The only debatable question that can arise is, whether it has been paid in whole or in part?

After the death of a plaintiff in a judgment, it is an open question, who owns it? who has succeeded to his rights? The question of title, as well as other questions that may arise in such a case, are not to be determined in a proceeding by scire facias, but by an action, seeking the same relief that was formerly obtained by scire facias.

An assignee of a judgment, if the plaintiff was dead, could bring a scire facias in his own name (Murphy v. Cochran, 1 Hill, 339). He can undoubtedly now maintain an action to obtain judgment, that he have execution of the original judgment (Vide Cameron v. McKay, 6 How. P. 372.)

The motion is denied, but without costs.

In the matter of WALKER, an imprisoned debtor.

A petition for the discharge of a debtor, imprisoned under an execution, cannot be heard by a judge at chambers. It must be presented to the court at a regular special term.