General
Trustees of New Castle County Common, Plaintiffs below, Appellants, v. Chauncey P. Holcomb, Defendant below, Respondent
6 Del. 2931 Houst. 293·Delaware Superior Court·1856·DE
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Opinion
Trustees of New Castle County Common, Plaintiffs below, Appellants, v. Chauncey P. Holcomb, Defendant below, Respondent.
An appeal from a justice of the peace, where the cause of action survives, will not abate by the death of the respondent after the appeal is taken and the transcript is filed in Court, but before citation is served upon him ; and, under such circumstances, a scire facias will lie to make his executor a party to the appeal in Court.
This was an appeal from a justice of the peace. The action was for rent. After the appeal was taken, and the transcript of the record below had been filed,in this Court, and citation had been issued, but before it was served upon the defendant below, he died, and it was returned mortuus est. The appeal was entered to May Term, 1855, and the defendant died in the month of April preceding. An alias citation was issued to his executor in October, 1856, returnable to the present term.
L. E. Wales, for respondent,
now obtained a rule upon the appellants to show cause wherefore the appeal should not be dismissed. On the hearing the question arose whether the appeal had not abated by the death of the respondent before the service of the citation, or whether a scire facias could issue in the case, under the provision of the Constitution, to make his executor a party to the appeal. For the respondent, it was contended, that the appeal had abated by the death of the defendant below before the service of the citation, which was necessary to make him a party to the action in this Court; but if the Court should be of opinion that the appeal had not abated, and a scire facias would lie, it was then too late to issue it, and the appeal should be dismissed for the want of due diligence in the prosecution of it.
[MAJORITY — The Court,]
The Court,
however, discharged the rule, and held that the appeal had not abated under the circumstances, and that a scire facias would lie to make the executor a party-respondent to it in this Court.
Wolfe, for appellants.
L. E. Wales, for respondent.