Thomas v. Thomas

Bartol, O. J., delivered the opinion of the Court. This case was decided'at the last Term of this Court, when a decree was passed dismissing the appeal, for the reasons then stated. The appeal was from a decree of the Circuit Court of Baltimore City, granting to Norbourn' Thomas a divorce a vinculo from the appellant. The decree was passed on the 16th day of Eebruary 1880.

On the 20th day of March, ensuing, the appeal was entered; and the transcript of the record was filed in this Court on the 15th day of June, in the same year. It appeared, from a suggestion made in this Court, that in the intermediate time between the entry of the appeal in the Circuit Court, and the transmission of the record to this Court, io wit: on the 28rd day of March 1880, Norbourn Thomas, the appellee, died; and a motion was made to dismiss the appeal, on the alleged ground that by the death of the appellee the suit had abated, and consequently the appeal could not he prosecuted. The suggestion and motion were made by Mr. Keene, who was counsel of record for the appellee; and the fact of the death of Norbourn Thomas at the time stated, was admitted. - In disposing of the appeal, we said that sec. 11, Art. 2 of the Code had no application'. That section provides, “ when a case is under rule argument in the Court of Appeals, and a party shall die, having an attorney in Court, the Court of Appeals shall give judgment, to have the same effect as if the party were alive,” &c.

It was clear that this case did not fall within the provisions of sec. 11, as the death occurred before the transcript reached this Court. It was contended that the suit being merely personal in its character, the doctrine of the law actio personalis ⁵⁰⁷ moriiwr cum, persona was applicable and therefore the suit had abated, and could not be revived. In disposing of that argument, we decided that except so far as the question of dissolving the marital relation was concerned, the case did not necessarily abate by the death of the husband occurring after the decree, where it appears that lie has left property, real or personal. We said, that “so far as the question of the marital relation was concerned, that question was forever concluded by the death of the appellee, and no one had any longer any interest in reviving it.

But the decree which granted the divorce, at the same time determined the property rights of the appellant, and if unreversed, deprived her of all rights in her late husband’s property. With respect to that question her interest survived, and if the decree was erroneous, she was aggrieved thereby, and had a standing in Court to prosecute an appeal therefrom, for the purpose of having the decree reversed.” And we referred to Wren vs. Moss, 2 Gilman, (Ills.,) 72, and Shaffer vs. Shaffer, 30 Mich., 163 , as containing correct doctrine on the subject of the abatement of suits for divorce. We decided further, that in such case the appeal could not he prosecuted against the deceased husband : as to him the suit had abated. But the appeal could ,be prosecuted only against those persons upon whom, by his death, the right to his property had devolved; as the executor, heirs-at-law, or devisees, and alienees.

Those persons ought to have been made parties to the proceeding, and as that had not been done the appeal was dismissed. After that decision was rendered, and before the lapse of the Term, a petition was filed in this Court by the appellant, praying to have the appeal re-instated, so that the case might be decided upon its merits. Exhibited with the petition is a copy of the last will of Eorbourn Thomas, deceased, admitted to probate in March 1880, ⁵⁰⁸ together with letters of exemplification from the Register of Wills for Baltimore City, showing that letters testamentary on his estate had been duly granted to John Henry Keene, Jr., Esq., the executor named in the will. The petition further alleges that after the decree of divorce had been passed, viz., on