Shipley v. Johns

Fowler, J., delivered the opinion of the Court. On the 7th of May, 1870, Charles Shipley brought an action of ejectment against Richard H. Johns in the Superior Court of Baltimore City. The defendant appeared on the 9th of May, pleaded non cul. and issue was joined. Nothing further was done in the case until March 22nd, 1889, when, as appears by the testimony of the deputy clerk of said Court, without any order of Court he entered on the docket continuances from January Term, 1871, to September Term, 1888, inclusive: On the same day the plaintiff suggested the death of the defendant, asking ⁵⁴⁴ that the case be continued, to the end that the heirs-at-law and widow of said defendant might appear and be admitted as defendants, and that summons might issue for them returnable at the next Court.

The defendant died on the first of January, 1886, and within three months thereafter the plaintiff was informed of that fact. On the first of April, 1889, the appellees, being the widow and heirs-at-law of the defendant, were returned summoned by the sheriff; and on the 27th of May, 1889, they appeared in proper person only for the purpose of filing a motion to strike out all the continuances so entered, and for a judgment of non pros. After hearing the motion, the Court below sustained it, and entered a judgment of non pros, as prayed. From this action of the Court the plaintiff has appealed.

At common law all actions abated by the death of either plaintiff or defendant; but our statute (Code Art. 75, sec. 24,) provides that “no action of ejectment * * * in any Court of law in this State shall abate by the death of either or any of the parties to such action; but upon the death of any defendant, the action shall be continued, and the heir or executor of the defendant, or other person interested on the part of the defendant, may appear to such action; and in case the proper person to defend doth not appear at the Court at which the death is suggested, the plaintiff may issue a summons, returnable to the next Court, directed to the proper person to defend such action; and upon such summons being served, the person summoned shall appear." According to the Rules of the Superior Court, the case having been continued twice, that is to say at the January and May Terms, 1871, it went on the stet docket, where it remained, under the operation of Rule 29 of said Court, until either plaintiff or defendant should give the notice required to bring it to-trial. And it maybe assumed that the case, thus regularly on the stet docket, was ⁵⁴⁵ lawfully continued by consent of parties, and it could have been forced to trial or other disposition, under said Rule 29, until the first of January, 1886, when the defendant died. The plaintiff contends that, inasmuch as the statute does not in express terms fix a definite time within which the suggestion of death must be made, it may be made at any time, at least, within twenty years from the time when the right to sue in ejectment accrued. But with this view we cannot agree.

The case under consideration is itself an illustration* of the delay that may result from such a construction. Nearly nineteen years after the action was brought, and more than three years after the plaintiff is informed of the defendant’s death, it is proposed to file the suggestion and make the widow and heirs parties to the action. While it is true that the statute does not fix the exact time when the suggestion shall be made, yet we think it entirely consistent with the due administration of justice, and the reasonable dispatch of the business of the Courts, that the plaintiff should be required to act promptly if he wishes to enforce his action again.st the heirs of the defendant. ' After the death of the defendant became known to the plaintiff in March or April, 1886, he could at once have made that fact known to the Court, and the cause would have been continued, for the statute provides that upon the death of any defendant, the action shall be continued. But continued