Opinion
1 Div. 164.
December 17, 1942.
Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.
Suit for wrongful death by James S. Patterson, as administrator of the estate of Oscar Andry, deceased, against George Willis. From an order or judgment denying a motion to quash the verdict and judgment and dismiss the case, defendant appeals.
Appeal dismissed.
Ernest V. Otts, of Greensboro, for appellant.
In order to revive an action the procedure outlined by the statute must be followed. Revival was not effected in the manner required. Code 1940, Tit. 7, § 153. Defendant proceeded in compliance with the rule to quash the verdict and judgment. Circuit Court Rule 13, Code 1940, Tit. 7, p. 1027. A suit cannot be revived after 12 months from the occurrence of the event which rendered it necessary. Code 1940, Tit. 61, § 121; Brown v. Tutwiler, 61 Ala. 372; Ex parte Howell, 118 Ala. 178, 24 So. 500. As there was at the time of trial no plaintiff, the complaint stated no cause of action. The complaint would not support a judgment, and defendant may show this at any time before or after judgment. Woodward Iron Co. v. Burges, 219 Ala. 136, 121 So. 399; John E. Ballenger Const. Co. v. Joe F. Walters Const. Co., 236 Ala. 546, 184 So. 273.
D. R. Coley, Jr., of Mobile, for appellee.
No judgment can be arrested, annulled or set aside for any matter not previously objected to, if the complaint contained a substantial cause of action. Code 1940, Tit. 7, § 570; Stoer v. Ocklawaha River Farms Co., 223 Ala. 690, 138 So. 271. If no demurrer is interposed to test complaint and cause proceeds to judgment, reasonable intendments in construction of pleadings are indulged to support the judgment. Parker v. Jefferson County, 209 Ala. 138, 95 So. 364; Lessley v. Prater, 200 Ala. 43, 75 So. 355. Code, Tit. 7, § 153, is in the nature of a statute of limitations. The action is not abated by the death of a party. Code, Tit. 7, §§ 150, 153. The limitation can be waived by either party.
The appeal is from an order of the circuit court denying the defendant's motion to "quash the verdict and judgment in the cause and dismiss the case."
The action was commenced by Randolph P. Andry as the administrator of the estate of Oscar Andry, deceased, on June 22, 1938, under the homicide act to recover damages for the wrongful death of the plaintiff's intestate. The defendant appeared and filed his plea of the general issue, not guilty, July 18, 1938. On June 27, 1941, "upon motion of plaintiff," the "plaintiff was allowed to amend the complaint by substituting James S. Patterson as administrator of the Estate of Oscar Andry, deceased, in place of Randolph P. Andry administrator of the Estate of Oscar Andry, deceased."
The necessity for the substitution does not appear of record, and though the defendant was present in court by his attorney, no objection was made thereto. The case proceeded to trial on the same date, resulting in a verdict and judgment for the plaintiff for $1,250.
The grounds set up in the motion to quash, vacate and dismiss, are that the original plaintiff had died in March, 1940, and the suit was not revived as required by law — more than twelve months having elapsed between the date of said death and said substitution.
The statute, Code 1940, T. 7, § 153, providing for revivor of actions, when the cause of action survives, "is in the nature of a statute of limitations barring the right, if it is not exercised in the mode and within the prescribed time." Pope, Adm'r v. Irby, Adm'r, 57 Ala. 105, 107; Forbes Piano Co. v. Hay, 200 Ala. 80, 75 So. 408.
The bar of the statute to a revivor like the bar of the statute of limitations may be waived by a failure to assert or claim it before judgment. Code 1940, T. 7, § 570.
Moreover, the order denying the motion will not support the appeal. Carlisle et al. v. Carmichael et al., 222 Ala. 182, 131 So. 445; Ex parte Gay, 213 Ala. 5, 104 So. 898.
Appeal dismissed.
GARDNER, C. J., and THOMAS and LIVINGSTON, JJ., concur.