Opinion
(December Term, 1843.)
1. The application to revive a suit in the name of the administrator of a deceased plaintiff must be made within two terms after his death.
2. Affidavits will be received to show when the plaintiff died.
3. If the death of a plaintiff occurs after the commencement of the term of this Court, at which the appeal in his case is regularly entered, although this judgment be not rendered at that term, the Court may enter a judgment nunc pro tunc as of a day previous to his death, but they cannot do so when he died previous to the commencement of such term.
THIS was an appeal to June Term, 1842, of this Court, which term began on 13 June. The defendant was the appellant, and filed the transcript on 29 May. Although the opinion of the Court was delivered at that term ( 24 N.C. 440), the judgment was not entered, and it was afterwards ascertained that the plaintiff Lea, the administrator of Harris, died 7 June, 1842. The county court of Brunswick, on 1 December, 1842, granted administration of Harris' estate to Hartford Jones, and he at this term moved for leave to revive the suit in his name, which was opposed by the defendant, who offered affidavits as to the period of Lea's death, which were not disputed on the other side. (10)
John H. Bryan for plaintiff.
Strange for defendant.
Without having regard to the circumstance that the letters of administration to Jones are general, and not de bonis non, his motion must be denied as not having been made in due time. Rev. Stat., ch. 2, sec. 6, allows a suit brought by an administrator to be revived by an administrator de bonis non as it might be revived by an executor upon the death of his testator. Now, by the preceding sections of the act taken from the Acts of 1789 and 1799, according to this settled construction, the executor of a deceased plaintiff must apply to carry on the suit within two terms after the day of the testator's death, except in the cases of contests about a will or the administration, of which there is no suggestion here. Rule of Court, 1 N.C. 88; Anon., 3 N.C. 66. This is the third term since the death of the original plaintiff, and, therefore, the application is not in time to prevent the action from abating.
The death of the plaintiff had occurred while the case was held under advisari here. We might enter the judgment nunc pro tunc as of a day previous to the death, but in fact that event occurred before the case was constituted in this Court, or at least before the first term, so that there is no day of which a judgment could be entered in this Court in the life of the party.
PER CURIAM. Motion disallowed.
Cited: Isler v. Brown, 66 N.C. 560.
(11)