
    Squibb v. McFarland.
    Practice in Supreme Court. Motion to dismiss writ of error sued out in ■-name of dead 'party. In ignorance oí the death oí his client, an attorney filed transcript in the Supreme Court to have this case heard on writ of error, and gave bond for costs in the name of his deceased client. Upon motion entered by defendant in error to dismiss, the - administrator of decedent offered to revive in his own name. This cannot be allowed. There is no suit of his intestate in court to which he, as administrator, can be substituted. A writ oí error is the be- ' ginning of a new suit, and cannot be commenced by a dead person. The motion to dismiss is therefore well taken.
    FROM JEFFERSON.
    . Writ of error from Chancery Court at Dandridge, November Term, 1868. S. J. W. Lucky, Ch.
    Cocke & Henderson, for complainant:
    There is another question to be disposed of in this ease. This arises upon the motion to dismiss the writ of error. The facts upon which the motion is based are, that Mary Squibb had departed this life, and William Miller had been appointed administrator to her estate, before the writ of error was sued out.
    This, it is conceded, was an irregularity, but not one affecting the merits. Under our practice no writ ■of error in fact issues. Nothing more is necessary than to file the record, obtain the order of the clerk, or of the court, as the case may be, and issue notice of the fact to the defendant in error.
    The object of the notice is fully accomplished if the defendant in error appears without it, or upon a defective notice. This was done at the last term; the defendant in error then appeared, the • cause was regularly heard, the decree of the Chancellor reversed, and the cause remanded. After all this was done, a petition for rehearing was filed, which is appended to the record. The case of Chaffin, et al. v. Crutcher, 2 Sneed, 360, is directly in point, and supersedes the necessity of citing other authorities.
    This court will not permit cases to be determined except upon their merits, if the record renders it possible. It will not permit a suit to be abated, if a motion is made to revive before the order directing its abatement has been entered. This was held, after full argument, in the case of Churchwett v. The Banlt of East Tennessee, 1 Heis., 780, adopting the rule and the reasoning to support it in Young v. Officer, 7 Yerg., 137.
    The bond for the writ of error is insufficient, but we now offer to give a new and proper bond at once.
    Barton, for defendants:
    This is a writ of error sued out in the name of Mary Squibb after her death. Henderson, as attorney, gives the bond of Mrs. Squibb and sues out the writ. At the last term, by mutual mistake and ignorance of the fact of her death on the part of counsel, the case was heard and the decree of the Chancellor reversed. A petition to rehear was filed, pending which the fact of the death of Mrs. Squibb-was ascertained, and a motion made by defendant’s counsel to dismiss on that ground. The court then, •at the last hour of the term, ordered all entries in the case to be vacated and for nothing held. So that the argument of counsel goes for nothing.
    The single question stands, can a suit be brought in the name of a dead man?
    The “writ of error is regarded in law as a new suit, and like all other suits, may be commenced by the party at his own peril, without notice to the adverse party. But, as in all other suits, the defendant must be notified of the pendency of the suit, and have a day in court to make his defense.” Spur gin V. Spurgin, 3 Head, 23.
    The motion to revive cannot be maintained, for there is no suit to revive, and the motion to dismiss is the proper and only mode of defense.
    All that can be predicated of my appearance, is, that I appear for the defendant to make proper defense to the case assumed to be pending. But my appearance does not give life and being to Mrs. Squibb; and if a, judgment had even been rendered, it would have been simply void. The object of the ■law is the living man, not the dead body; hence, a judgment rendered after the death of the defendant, without noticing his death of record, is void, and a ■sci. fa. against his personal representative does not help such judgment. Garter v. Garrger, 3 Yer., 411; see, also, Kelly v. Hooper, 3 Yer., 395.
   FítEEMA'jsr, J.,

delivered the opinion of' the court.

A motion to dismiss the writ of error is made in this case. The facts are, that when the record was-filed Mary Squibb was dead, this fact not being known to the counsel. At last term of this court an agreement appears to have been made between counsel, admitting .the fact of her death; but, as far as we see, there has been no revivor here, even if it is a case in which it may be done — as to which' we at present give no opinion. The record having been filed after the death of Mary Squibb, and in ignorance of the fact, by her attorney, the bond signed with her name is a nullity, and we have the simple-case of a record filed in this court for a writ of error, with no plaintiff in error and no bond, which is moved to be dismissed. It is, however, insisted, that her administrator has since been ’appointed, who appears and claims the right to have the writ of error revived and prosecuted in his name. This is the question now presented on this motion. . Two cases are referred to by counsel as supporting the right to a revivor. The first is Chaffin et al. v. Crutcher, 2 Sneed, 360. That case simply holds the general principle, well established, that on a motion against an officer, the party appearing taking no exception to the proceedings, is held to have waived notice. So the-appearance of the party at last term, if a suit had been 'pending in the court at the time of such appearance, would clearly have been a waiver of the notice required to be given. In case of a writ of error on filing the record, no writ in fact issues by our practice. But it is a different question presented in this case, not a question of notice to appear; but the party now appears, and moves to dismiss the case appearing against him on the Docket, on the ground that no suit is properly here, there being no person in being to commence it, and no bond given at the time the record was filed.

The other case' referred to is the case of Churchwell v. Bank of East Tennessee, 1 Heis., 780. In that case, Churchwell had prosecuted his appeal in the nature of a writ of error, which was pending in this court at his death. The only question decided was, that the “right to revive a suit or appeal, or appeal in the nature of a writ of error, subsists and continues through the whole of the second term of the court, after the suggestion and proof of the death of the party.” It is obvious this case has no bearing on the question presented in the case now before us.

In the case of Spurgin v. Spurgin, 3 Head, 25, it is laid down, that a writ of error is regarded in law as a new suit, and, like all other suits, may be commenced by the party at his own peril without notice to the adverse party; but, as in all other suits, the defendant must be notified of the pendency of the suit and have a day in court to make his defense. When the party appears, either on notice or voluntarily, he may make all appropriate defenses to the suit thus commenced; and we hold that the party has the right as in this case, on the fact appearing in the record that the suit was sought to be commenced and prosecuted against him by a party not in existence, to move to dismiss the same, and that in such case this court would have no option but to allow the motion. In a word, as to the application of the administrator to revive the suit in his name, it must be answered, that his intestate had no suit in court to which he can be substituted. This must be so, unless we abandon all consistency in our reasoning, or else hold that the filing of the record by counsel and giving a bond in the name of a deceased party, is not the commencement of a suit, in the form ■of a writ of error, in this court.

It follows, that the motion must be allowed and writ of error dismissed.  