Coit v. Campbell

Both of the defendants having died, the plaintiff claims an absolute right to revive or continue this action on motion, by virtue of section 757 of the Code of Civil Procedure, as amended in 1879, which reads as follows: “ Section 757. In case of the death of a sole plaintiff, or a sole defendant, if the cause of action survives or continues, the court must, upon a motion, ■ allow or compel the action to be continued by or against his representative or successor in interest.”

It is evident that this is a question of considerable importance. To hold that the command of the statute is imperative, and that whatever length of time may have elapsed since the death of the party, the order to revive must be granted, would be contrary to established principles of equity and to the policy upon which our statutes of limitation are founded, while to hold that the subject is wholly within- the discretion of the court, and that any lapse of time which it may consider unreasonable, is a sufficient ground for refusing the order, would not only be contrary to the letter of the statute, but might lead to irremediable’injustice. By denying to a party a continuance or revivor of his action, his rights may be entirely lost, and if the order is purely discretionary, he is without remedy by appeal, unless, perhaps, in a gross case of abuse of discretion. There is no reason why the right of a party to continue or revive his action should be less protected by legal rules and by the privilege of appealing from an adverse decision, than his right to bring or maintain it.

Under the chancery system the remedy in case of the abatement of a suit in equity by death, was a bill of revivor. This bill the party had a right to file without applying to the court for leave, and it could be met by plea"or demurrer. There was no statute fixing the time within which it might be filed, nor indeed was there any statute of limitations in England applicable to the Court of Chancery. But loches and neglect were always discountenanced and, therefore, there was a limitation to suits in the Court of Chancery, and where Parliament had. limited the time of actions and remedies to a certain period, in legal proceedings, the Court of Chancery adopted this rule, and

Under the Revised Statutes, the formality of a bill of revivor might be dispensed with, and the remedy obtained by petition, and under the former Code (§ 121), by motion, if made within one year, and by supplemental complaint after that time. In Beach v. Reynolds ( 53 N. Y. 1 ), it was held that, under that section, the right to revive an equity suit was not an absolute legal right, but rested in the legal discretion of the court, and that long delay was a valid reason for refusing the leave asked; but it must be observed that in that case the delay was twenty-two years. In Hercy v. Dinwoody (4 Bro. Ch. 257), cited in the opinion of the Supreme Court in Beach v. Reynolds at page 9, as an instance of the application of the doctrine of loches to a bill of revivor, the delay was twenty-six years. In Earl of Egremont v. Hamilton, the bill was filed in 1799 to obtain the benefit of a decree rendered in 1740, directing an accounting, the suit having abated in 1771. These were cases, it is true, of bills to revive after decree, but I have found no case in which a delay less than the term fixed by the statute of limitations for bringing the actions sought to be revived, has been

It is to be observed that Judge Allem in his opinion in Beach, v. Reynolds, cautiously uses the term “ legal discretion.” This refers to a discretion guided by some rule, and when the manner in which the discretion of a court of equity will be exercised in particular cases, has been settled by a long course of adjudication, it becomes a rule of equity applicable to similar cases subsequently arising.

All the various proceedings which have been from time to time authorized by statute, .for the purpose of reviving suits in equity, interrupted by the death of parties, are but substitutes for the old bill of revivor. They change merely the mode of procedure, but the right is always the same and should be governed by the same principles. In Washington Ins. Co. v. Slee (2 Paige, 368), the Chancellor expresses the opinion that the same objections which might be raised by plea, or demurrer to a bill of revivor, might be shown in opposition to a petition to revive under the statute, and it would seem to follow that a delay which would not be a bar to a bill of revivor, ought not to be a sufficient answer to a petition under the statute or a motion under the Code, and I regard all the authorities on the subject as recognizing, as a rule of equity, that the discretion of the court to refuse to revive a suit on the ground of delay, is to be guided by the statute of limitations applicable to the subject-matter of the suit. (Mitford’s Pleadings, 290; 2 Barb. Ch. Pr. 680; Story’s Eq. PL, § 831; Cooper’s Eq.

Mo practical inconvenience or hardship can result from the adoption of the views here expressed, as the defendant or his representatives can, and always could, compel the adverse party to revive the suit or ‘dismiss it. But where it is suffered to slumber with the tacit acquiescence of both parties, the statute of limitations should, as a general rule, be adopted as the guide in determining the length of time sufficient to bar the right.

In the present case the defendants died at very nearly the same time — the defendant Palmer, on the 10th of May, 1874, and the defendant Campbell, on the 5th of. June, 1874. Letters testamentary were issued to the executors of Palmer in June, 1874, and to the executor of Campbell in the same month. The motion to revive was first made in or about March, 1879, and denied, with leave to renew on explaining the loches. It was renewed and again denied in September, 1879. From the last order this appeal is taken. If the case

The respondents’ counsel, however, urges further grounds, in addition to that of loches, for sustaining the denial of the motion.

He contends that section 757 applies only to the case of the death of a sole plaintiff or sole defendant, and not to the case of the death of all of ■ several plaintiffs or defendants, and that the case is not covered by that section. "We think it would be placing too restricted a construction upon the section to limit it to an action originally brought by a single plaintiff or against a single defendant, and that no relief could be afforded under it when all of several parties on one side of the litigation died. If all of several defendants but one, had died, and the right of action had survived against that one, he would then have become the sole defendant, and we think that, upon his death, a motion under section 757 could be resorted to for the purpose of reviving the action against his representatives. But such is not this case. The principal party defendant was Palmer; the relief was sought against him, and was to declare that land, the legal title to which was apparently vested in him, was in fact held by him in trust for Campbell and Moody, and was subject to the lien of a judgment against them, and the motion was to revive against his executors, as well as against the executors of Campbell, and also of Moody who had died before the commencement of the action; now, Palmer, when he died, was not a sole defendant; he was one of two defendants, and the other survived him. It is'only to the case V)f a sole defendant that section 757 applies, and the action can be continued under that section only against the representative or successor in interest of such sole defendant. Furthermore there is nothing to show that Palmer’s executors are his successors in interest in this litigation. It does not appear that he devised the land in question to his executors, or that they have any interest in it. On the contrary, he conveyed it

This conclusion renders it unnecessary to pass upon the effect of the denial of the first motion as rendering the matter t'es judicata. Treating the second as an original apulication it was properly denied.

The order should be affirmed, with costs.

All concur.

Order affirmed.