Opinion
(December Term, 1843.)
In an action of ejectment, upon the death of the defendant, a sci. fa. and a copy of the declaration must be served on the heirs at law in the manner prescribed by the act (Rev. Stat., ch. 2, secs. 7, 8, 9) within two terms after the decease of the defendant, or the suit will stand abated. It is not sufficient to apply for such process within the two terms.
APPEAL from Dick, J., at Fall Term, 1843, of YANCEY.
No counsel for plaintiff.
Hoke, Alexander, and J. H. Bryan for defendants.
Ejectment. At the Fall Term, 1842, the death of the defendant William Scott was suggested on the record. At Spring Term, 1843, there was an order for a scire facias to issue to James Scott, of Burke County, and an order of publication as to the other heirs at law of the said William Scott. A scire facias issued from Spring Term, 1843, made returnable to Fall Term, 1843. This scire facias was actually returned to the special term held in August, 1843. At this term the following order was made: "Ordered by the court that a copy of the declaration and notice to James Scott to next term; also issue copies to the sheriff to notify the other heirs to this county." At Fall Term, 1843, the declarations not having been issued, the defendant's counsel contended that the suit had abated, and the court having so decided, the plaintiff appealed to the Supreme Court.
The act of 1786, Rev. Stat., ch. 2, sec. 1, authorized heirs and executors to carry on suits after the death of one of the parties. But as it prescribed no time at which the application to revive should be made, it became necessary that the courts should lay down a rule of practice to regulate the action of parties. In 1798 a Regula Generalis was adopted that if a plaintiff died and his (80) executors did not apply to carry on the suit within two terms after the death, the cause should abate. 1 N.C. 134. The same period has also uniformly been taken, in case of the defendant's death, for the plaintiff to take steps to bring in the representatives. In the construction of the act and the general rule, it was held that if the defendant died, and the plaintiff, at the second term after his death, sued out a scire facias, or had an order entered for issuing such process, that was an application in due time. Hamilton v. Jones, 5 N.C. 441. We suppose that the application of the plaintiff in this suit is founded on that case; but we do not think it will support the motion. The act of 1786 embraced only such actions as survived to or against representatives. The action of ejectment was not of that character, and therefore it could not be revived on the death of the defendant. To remedy that inconvenience the Legislature passed the act of 1799, ch. 532, Rev. Stat., ch. 2, secs. 7, 8, 9, in which it is enacted "that after the death of the defendant, the action of ejectment may be revived by serving on the heirs at law, within two terms after his decease, a copy of the declaration, together with a notice to the heirs to appear and defend the suit; and after such service, the suit shall stand revived," with particular directions as to the mode of service where the heirs are infants or reside out of the State. Under this act it has been held that a service of the copy of the declaration and notice at the second term is sufficient to prevent an abatement ( Ray v. Simpson, 4 N.C. 227); but service at a later period cannot be admitted as sufficient without disregarding the unequivocal language of the act for the reviving of this particular action. The distinction between the provisions of this act and those of the act of 1786 and the Regula Generalis is obvious — this requiring "service" and the former "an application" within two terms. Here there was no service of a copy of the declaration nor attempt to serve it until the expiration of the second term, which was too late.
There is no error in the decision below, and the appellant must pay the costs in this Court.
PER CURIAM. Affirmed.
Cited: Tripp v. Potter, 33 N.C. 122.
(81)