
    Birmingham Railway, Light & Power Company v. Cunningham, Admr.
    
      Proocedings for noire facias to revive Judgment.
    
    1. Revival of judgment after death of plaintiff; when scire facias proper remedy. — Where after a judgment in favor of the plaintiff, an appeal is taken to the Supreme Court hy the defendant from such 'judgment and after the submission of the cause in the Supreme Court, the plaintiff in said suit dies, a judgment of the Supreme Court rendered thereafter confirming said judgment, has 'effect as of the date of the submission of the cause; and therefore, after the certification of said judgment of affirmance to the City Court, a proper proceeding in said court by the .administrator of the estate of the deceased plaintiff, is to file a petition of scire facias to revive said judgment in the name of said administrator against the defendants in the judgment rendered by the Su- ‘ preme Court.
    2. Same; same; effect of consolidation. — Where in such a case pending the .appeal in the Supreme Court, the defendant in said suit, who was- a corporation., enters into a consolidation with another corporation, and the consolidated company takes the name of the other corporation, the consolidated corporation in and. hy the new name is the proper party respondent to the petition for scire facias, and a judgment awarding said writ is properly rendered against the consolidated company.
    Appeal from the City Court of Birmingham.
    Heard before the Hon. Charles A. Benn.
    The proceedings in this case was had upon a petition filed by the appellee, W. C. Cunningham, as administrator of the estate of A. B. Jackson, deceased, and addressed to. the judges of the City Court of Birmingham, praying for the issuance of the unfit of scire facias to revive a judgment in the petitioner’s name as administrator of
    A. B. Jackson, deceased, against the Birmingham Bail-way & Electric Company. The Birmingham Bailway & Electric Company and Bobert Jemison and J. B. Mc-Olary were made respondents to the petition.
    The petition was filed upon the following facts, which were averred therein and shown on the hearing: A. B. Jackson, the petitioner’s intestate, recovered a judgment for $2,000.00, together with the costs, against the Birmingham Bailway & Electric Company on the 8th day of May, 1900. From this judgment the Birmingham Bail-way & Electric Company took an appeal to the Supreme court, and Bobert Jemison and J. B. McClary were sureties on the appeal bond. The cause was submitted to' the Supreme Court on appeal during the lifetime of said A. B. Jackson.
    Said Jackson died in December, 1900, a few weeks after said, submission. In June, 1902, the Supreme (hurt rendered a judgment in this cause, affirming the judgment of the trial court. In this judgment of the Su-, preme Court it was recited that the Birmingham Bail-wav & Electric Co. and Bobt. Jemison and J.
    B. McClary, sureties on the appeal bond, should pay the judgment rendered in the. City Court and 10 per centum the damages thereon, and the costs of appeal. This judgment of confirmance was duly certified to the City Court. Thereupon, the said A. B. Jackson having died, and the petitioner, W. C. Cunningham having been appointed administrator of the estate, filed the present petition, asking for a writ of 
      sobro facias, and prayed that tlie judgment be revived in the name of said W. C. Cunningham as administrator of the estate of A. B. Jackson, deceased, and that execution issue against the said Birmingham Railway & Electric Go. and Robt. Jemison and J. B. McOlary, upon said judgment. The petition was subsequently amended by averring that after the cause was appealed to the Supreme Court and before a judgment was rendered by said court, the Birmingham Railway & Electric Co. consolidated with the Birmingham Railway, Light & Power Co., a corporation, and that said consolidation was under the! laws of the State of Alabama, and that such consolidated company took the name of the Birmingham Railway, Light & Power Co. -The service of the summons, as shown by the return of the sheriff, was upon the Birmingham Railway, Light & Power Co. and Robt. Jemison and J. B. McOlary. It was shown by the evidence that in November, 1900', the consolidation, as averred in the amendment to the petition, took pla.ce, and that the consolidated company took the. name of the Birmingham Railway, Light & Power Go.
    Each of the respondents demurred to the original and and amended petition upon the grounds that it was shown by said petition that the plaintiff, in said suit had died prior to the rendition of the judgment by the Supreme Court, and that therefore the said judgment rendered by the city court of Birmingham was abated by the death of the plaintiff in said suit, and that the facts averred in the petition did not show that the petitioner as administrator, was entitled to the relief prayed for. These demurrers were overruled.
    Upon the hearing of the cause, the court granted the relief prayed for in the petition, and ordered' that said-judgment as affirmed by the Supreme Court be “revived in the-name of W. 0. Cunningham, as administrator of the estate of A. B. Jackson, deceased, against the said Birmingham Railway, Light & Power Co., a corporation, and Robt. Jemison and J. B. McClary, sureties on the said -appeal bond, and that said W. C. Cunningham as such administrator, have and recover of the said Birmingham Railway, Light & Power Co. a corporation, and Robert .Jemison and J. B. McClary, sureties on tlie said appeal bond, the amount of .said judgment, as rendered by said Su])reme Court of Alabama, as aforesaid, and for which execution is hereby awarded in manner and form as directed by said Supreme Court.
    From this judgment the respondents appeal and assign the- rendition thereof as error.
    Walker, Tillmax, Campbell & Morrow, for appellant.
    The Railway & Electric Company was one corporation and the- Railway, Light and Bower Company was another. They consolidated under the statute authorizing street car companies so to do. The consolidated company thereby became a distinct and separate corporation from either of its constituent corporations. Meyer r. .Johnston, (54 Ala., (503; 1 Thomp. on Corp. Section 37o; 1 Thom]) on Corp. Section 3(55.
    We insist that the court should not have revived the judgment or ordered execution against appellants, Jem-ison and McClary. It may be that the judgment of the Supreme Court on affirmance had referredi the judgment to the date of submission it would have been good, but this was not done, and unless tin1 Supreme Court can grant a judgment in praesenti against or in favor of a dead man we insist the judgment against the sureties is void. K'ohn r. Haas, 95 Ala. 479; Baker v. Barclift, 70 Ala. 417; Moore r. Hasly, 18 Ala., 019.
    Bowjiax, HARSH & Beddoyv, contra.
    
    The defendant corporation existed for all purposes of the suit in which judgment had been recovered against it after the consolidation. After consolidating, the old company exists under a new name, and with enlarged powers; therefore the writ was properly directed against the consolidated company, llirsehl on Combinations, etc. of Corporations, p. 184; Faruu-ni r. Blacks!one Canal (Jo., 1 Sumner 46; T. 8. r. Ho. Pac. K. R. Co. & U. 8. v. Colton Marble cG /. Co. Day 0. & I. T/iinc Co., 45 Fed. Rep. 596; -Jno. Hancock M. Tj. . r. Worcester A. cG R. R. (Jo., 149 Mass. 214; r. Worcester R. R. Co., 151 Mass. 302;, Columbas Worcester R. R. Co C. Ry. Co. v. Hkulmon, 69 Ill. 566; Meyer r. .Jolmson cG Hteirart, (54 Ala.'603; I/ujlitner r. Boston G A Ibany Ry. Co., 1 Lowell 338.
   McCLELLAN, O. J.

The judgment rendered in (diis court on June 28th, 1902, affirming the judgment of the city court in the case of Birmingham Railway & Electric Co. v. A. B. Jackson, 34 South. 994, had effect as of date of the submission of the cause here' which occurred during the lifetime of the appellee, said Jackson, though in fact rendered after his death; and upon the certification of said judgment of affirmance to the city court, it stood in that court as a judgment rendered in his lifetime, but of which execution had not been had before his death. Therefore, the appropriate proceeding in the city court was that resorted t and adopted as shown by the record before us, viz,., by srirc facias to revive said judgment in the name1 of the personal representative of the deceased plaintiff in judgment, against the defendants in judgment.

J t appears that after the appeal to this court and prior to the inslitution of the proceeding of revivor in the city court, the defendant corporation was consolidated with another corporation,-the Birmingham Railway, Light & 'Power Company, the consolidated company taking the name of the Birmingham Railway, Light & Power "Company. In our opinion, for all the purposes of this proceeding the only effect of this consolidation was to change the name of the defendant in judgment from Birmingham Railway & Electric Company, to Birmingham Railway, Light & Power Company, without change of entity or identity, so that the consolidated corporation in and by the new name is the proper party respondent to the petition for scire facias, along with the sureties on the appeal bond against whom also judgment was rendered in this court. — Code 1896, §§ 1202, 1204; Uirsehl, Combination, etc., Corporations, 184.

Affirmed.

Haralson, Dowdell and Denson, J. J., concurring.  