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"The position is that the right of action for a tort is not the subject of assignment; and this we understand to be the general rule." (Citing cases.)
“But this rule applies only to those torts which are merely personal, and which, on the death of the person wronged, die with him; while torts for taking and converting personal property, or for injury to one's estate, and generally, all such rights of action for tort as would survive to the personal representatives, may, it seems, be assigned so as to pass an interest to the assignee which he can enforce by suit at law.” (Citing cases.)
This case has been followed and cited in many cases. Boynton v. Roe, 114 Mich. 401, 408; Holmes v. Loud, 149 Mich. 410, 413; Perkett v. Railroad Co., 175 Mich. 253, 264.
It is pertinent to examine the statute in force at the time of the death of Charles H. Sayre, and at the time of the assignment. This case was pending and at issue at both of those dates. Section 10113, 3 Comp. Laws 1897, reads as follows:
"In all personal actions, the cause of which does by law survive, if there is only one plaintiff, or one defendant, and the sole plaintiff or defendant shall die after the commencement of the action, and before the final judgment, the action may proceed and be prosecuted by or against the surviving party, and by or against the executor or administrator of the deceased party, in the manner provided in this chapter."
“The death of the party shall be suggested on the record, and his executor or administrator may thereupon appear and take upon himself the prosecution or defense of the suit, as the case may be; and it shall be thenceforth conducted in the same manner as if it had been originally commenced by or against the same executor or administrator."
"If the executor or administrator does not voluntarily appear on or before the first day of the next term after the death of such party, the surviving party may have an order of course, that the executor or administrator appear and take upon himself the prosecution or defense of the suit, within thirty days after the service of notice of such order."
"If the executor or administrator shall not appear within the time limited by such order, or within such further time as the court shall allow for that purpose, he shall be nonsuited or defaulted, and judgment shall be rendered against him in his representative capacity, and shall be evidence of a debt established, to be paid in the course of administration."
Conceding that this assignment covered this cause of action, the suit would not abate by reason of the assignment, and the case should have proceeded in the same manner as though no assignment had been made.
The transfer of a plaintiff's title or interest in a pending suit at law does not abate it, but the suit may proceed as instituted. Peters v. Gallagher, 37 Mich. 407; Moon v. Harder, 38 Mich. 566; Toledo, etc., R. Co. v. Johnson, 55 Mich. 456.
So long as the assignee acquiesces in the proceeding, and permits the suit to go on in the name of the assignor, the defendant cannot complain as he is in no way injuriously affected thereby. Any judgment that may be recovered in such action will protect him, and be a bar to any future proceedings which the assignee might undertake to commence, for the same cause of action. Peters v. Gallagher, supra.
So, in our opinion, it was still necessary for the death to be suggested, and the suit to be continued in the name of the personal representative of the deceased plaintiff, under the very terms of the sections of the statute above quoted. He alone could prosecute it. This case could not be affected by the provisions of the judicature act invoked by the defendant (3 Comp. Laws 1915, § 12353).
The right to have an administrator de bonis non appointed is not really before us. That is not an open question, but was settled upon the appeal from the probate court to the circuit court. No appeal was taken from the action of the circuit court, and the matter is res adjudicata.
It is further urged by defendant that the rule is well established that laches constitutes good ground for denying a petition to revive, and many cases are cited from other jurisdictions, the leading one being Lyon v. Park, 111 N. Y. 350 (18 N. E. 863). It may be doubted if that question is before us, as the order suggesting the death was not excepted to, nor is error assigned upon it. But treating it as an open question, we do not think that the cases cited are either controlling or persuasive under our statute. All of the cases cited are from States where the statutes materially differ from ours. Most of them are equity cases, and many of them deal with the death of defendants, where the property of deceased had been distributed, and conditions materially changed.
In Vickery v. Beir, 16 Mich. 50, it was held that the proceeding to substitute the administrator is entirely a matter of statutory regulation. It was there said:
“The proceeding on suggesting the death of a plaintiff is entirely ex parte, and there is no provision of statute by which notice of it is to be given to the defendant."
Under our statute such suggestion is a matter of course, and there is no provision for a contest, as there is in the States from which cases are cited.
In the examination of this record one is impressed with the fact that, notwithstanding the lapse of time between the institution of this suit and the trial, the responsibility for the delay did not rest upon the plaintiff solely. The defendant could have brought on the case at any time, under the provisions of the statute above quoted, and the case dismissed on defendant's motion. Its records were not destroyed until about twelve years after the case was at issue and the deceased witnesses died later. As we said when the case was here before: “A notice from either party would have placed it upon the trial docket," yet the case was allowed to slumber. In the absence of the running of the statute of limitations, should the court be swift to place all of the responsibility for this delay upon the plaintiff, and refuse a trial upon the merits? We think not.
5. It is claimed finally by the defendant that the statute of limitations is a complete defense, and section 12320, 3 Comp. Laws 1915, is invoked, which reads as follows:
"If any action, of which the commencement is limited by this chapter, shall be abated by the death of any party thereto, or if, after verdict for the plaintiff, the judgment shall be arrested, or if judgment in any such action be given for the plaintiff, and the judgment shall be reversed for error therein, the plaintiff or any person claiming from, by or under him, may bring an action for the same cause at any time within one year after the determination of the original action, or after the reversal of the judgment.”
It is claimed that under this statute the right of revivor lapsed one year after the abatement of the suit by Sayre's death. The difficulty with this position is that the suit did not abate upon Sayre's death, and the statute has no application except in actions which “shall be abated by the death of any party thereto." By the express terms of the statute which we have quoted, this action did not abate upon the death of the plaintiff—hence the statute invoked does not apply. The cases cited by counsel like McKenzie V. A. P. Cook Co., 113 Mich. 452, and Conley v. Sinclair, 163 Mich. 306, were ejectment cases, in which by the statute the death of a sole defendant did abate the action.
6. Lastly, it is claimed that interest was improperly allowed. We cite the following cases in support of the charge upon this subject. Kendrick v. Towle, 60 Mich. 363, 368 (1 Am. St. Rep. 526); Taylor v. Railway Co., 101 Mich. 140, 146; Larsen v. Telephone Co., 164 Mich. 295, 324, 328. See cases cited.
We find no error in the charge, and in our opinion the case was properly submitted to the jury in a careful charge.
Finding no reversible error in the case, the judgment of the circuit court is affirmed.
BIRD, C. J., and OSTRANDER, MOORE, STEERE, and KUHN, JJ., concurred with STONE, J. BROOKE and FELLOWS, JJ., concurred in the result.
WHITE v. COWING.
1. JURY-CHALLENGE FOR CAUSE-FRIENDSHIP FOR PARTY—IMPABTIALITY. That a juror had a general acquaintance with, and ex
pressed friendship for, one of the parties, was not ground for challenge for cause, where it appeared that he could and would try the case impartially, "although it would
make it harder" for him. 2. MASTER AND SERVANT—INFANTS PERSONAL INJURIES NEGLI. GENCE -QUESTION FOR JURY.
In an action for the loss of a foot by a boy nine years of