Unknown County MsArchives Court.....Dismukes, E 1834
************************************************
Copyright.  All rights reserved.
http://usgwarchives.net/copyright.htm
http://usgwarchives.net/ms/msfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines ddhaines@gmail.com December 8, 2005, 9:57 pm

Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi
Written: 1834
Recorded: 1818

E. DISMUKE8 vs. C. TERRY.

Pages 180-181

Upon a proper showing to this court that one of the defendants who was a non 
resident is dead, the cause may be revived by publication under the direction 
of the court.


OPINION OF THE COURT—BY CHIEF JUSTICE HAMPTON. 

By the 25th section of the supreme court law, revised code, 155, it is 
provided, "and where any person, plaintiff or defendant, in any suit depending 
in the said court, shall be dead, it shall be lawful for the clerk of the said 
court, during the recess of the court, upon application, to issue proper 
process to enable the court to proceed to a final judgment or decree in the 
names of the representatives of such deceased persons." The process which 
would be a proper one in such case as contemplated by the act, would be scire 
facias. There could be no doubt of this, if the parties reside within the 
jurisdiction of the court, and perhaps it should be the only one in all cases 
issued by the clerk, without the instruction of the court, on the return of 
which into court, endorsed by the sheriff “non est inventus,” the court would 
probably order publication. But on a proper showing, they have thought proper 
to do so in the first instance, and we can see no reason to dispute their 
authority, the rule being summary and expeditious, and yet sufficiently 
cautious for all the purposes of justice. 

In England the only mode of reviving now in use, is by a bill of revivor, 
Mitford's pleadings, 63, 64, 70, when a suit became abated after decree signed 
and enrolled, it was anciently the practice to revive the decree, by a 
subpoena in the nature of a scire facias, upon the return of which, the party 
served therewith, might show cause against the decree, 4. But if there had 
been any proceedings subsequent to the decree, this process was ineffective as 
it revived the decree only, and the subsequent proceedings could not be 
revived but by bill, and the enrollment of decrees being now much disused, it 
is become the practice to revive in all cases to discriminately by bill. 
Mitford's pleadings’ 15.

We are content with the present order, but as it may, from its novel 
character, have taken the party by surprise and as courts are always anxious 
to afford every opportunity for parties litigant to appear and represent their 
interests, we think it is our duty to extend the rule to the next form, not 
meaning, however, to be held to this precedent when this proceeding of the 
court in calling in non-resident representatives of a deceased party shall 
have been known from longer usage.

Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834.

File at: http://files.usgwarchives.net/ms/unknown/court/dismukes68gwl.txt

This file has been created by a form at http://www.genrecords.org/msfiles/

File size: 3.4 Kb