Trigg v. Conway, 1 Ark. Terr. Rep. 711 (1855)

April 1855 · Arkansas Circuit Court
1 Ark. Terr. Rep. 711

John T. Trigg, as administrator of Francis B. Trigg, deceased, plaintiff, vs. Elias N. Conway, as executor, and Mary Jane Conway, as executrix of the will of James S. Conway, deceased, defendants.

1. In an action of detinue the cause of action on the death of the plaintiff survives.

2. Where the jurisdiction has once attached, it is not divested by subsequent changes or events.

3. [Representatives of deceased parties may be substituted although citizens of the same State.

4. Such substitution is no new proceeding, but to enable the original suit to progress.

5. The 31st section of act of 1789 cited — -construction thereof — death and substitution of parties —jurisdiction of the court — explained in note, and divers cases there cited.

*712 April, 1855.

Detinue in the Circuit Court, before the Hon. Peter V. Daniel, associate justice of the Supreme Court, the Hon. Daniel Ringo, district judge, not sitting, haying been of counsel in the case.

This was an action of detinue brought by Francis B. Trigg against James S. Conway (ante, p. 538), subsequent to which time both parties died, and their deaths^ respectively were suggested and proved. After the institution, of the suit, the plaintiff removed to, and became a citizen of Arkansas, and after her death, John T. Trigg, also a citizen of Arkansas, took out letters of administration therein, and became her administrator; and, producing the letters, by his counsel moved to be substituted as plaintiff, and for leave to prosecute the suit, and for a sci. fa. to bring in the representatives of James S. Conway, deceased, at the next term, to which motion the counsel of the defendants objected.

P. Trapnall and George A. Gallagher, for plaintiff,

S. H. Hempstead and A. Fowler, for defendants.

Daniel, J,

This is a case in which the cause of action survives. Digest, 98; 1 Blatch. 394. It appears that administration has been granted to John T. Trigg on the estate of Frances B. Trigg by the proper authority,-and he is entitled to be substituted as plaintiff, and to prosecute the suit to final judgment. This is expressly authorized by the Judiciary Act of 1789. 1 Stat. 90.

It is objected by the counsel of the defendant, that after the commencement of the suit, the deceased plaintiff ceased to be a citizen of Missouri, and became a citizen of Arkansas, and of which last-named State her administrator is a citizen, and here took out letters of administration, and that as the suit is now between citizens of the same State, it should be dismissed for want of jurisdiction.

This objection is not maintainable, for it is undeniable that where jurisdiction has once vested, a change of residence of either of the parties will not divest it. That has frequently been decided by the Supreme Court of the United States. 2 Wheat. 297 ; 2 Peters, 564; 9 Wheat. 537 ; 8 Peters, 1. The death of either party, pending the suit, does not, where the *713cause of action survives, amount to a determination of it. The substitution of the representative of the deceased is not the commencement of a new suit, but a mere continuation of the original suit, and whether the representative belongs to the same State where the suit is pending or not, is quite immaterial. If the jurisdiction attached, as between the original parties, it still subsists. Clarke v. Mathewson, 12 Peters, 164. It is proper to substitute the administrator, and to direct a scire facias to bring in the representatives of the deceased defendant, returnable to the next term.

Ordered accordingly. 1