§ 845. Entitling orders. When the two suits proceed as one cause, orders and papers are entitled: "A. B., Complainant, vs. C. D. and E. F., Defendants-By original and supplemental bills."103 § 846. Dismissing bill. If the supplemental bill is unnecessarily or improperly filed, it will be dismissed at the hearing, although the complainant obtains a decree on the original bill.104 If no proof is made of the supplemental matter, the bill will be dismissed at the hearing.105 § 847. Decree. Where the original and supplemental bills are heard together, the decree is in the following form: "That it is in the original cause ordered," etc.; "and on the supplemental bill it is ordered," etc.106 61. See, also, Waterman v. Buck, 63 Vt. 544, 22 Atl. 15; Wilkinson v. Fowkes, 9 Hare, 193. 108 2 Barbour, Ch. Pr. 79; 104 2 Barbour, Ch. Pr. 79; 105 2 Barbour, Ch. Pr. 79; Seton, Decrees, 385. Eager v. Price, 2 Paige (N. Y.) 333. ro 2 Barbour, Ch. Pr. 80; Attorney General v. Hurst, 2 Cox, 364, cited in Seton, Decrees, 132. (914) CHAPTER XLVII. BILL OF REVIVOR. § 848. Definition and nature. A bill of revivor is a method of reviving and continuing the proceedings whenever there is an abatement of the suit before its final consummation. The death or marriage of one of the original parties to the suit is the most common, if not the sole, cause of abatement. It is a mere continuation of the old suit, and not the commencement of a new suit, for the abatement amounts to a mere suspension, and not to a determination of the original suit. And if the complainant was entitled to sue in the federal court on the ground of diverse citizenship, his personal representative, though a citizen of the same state as the defendant, may file a bill of revivor. In most jurisdictions, when a suit in equity has abated on account of the occurrence of certain conditions, a method is provided for reviving such suits by statute or rule of court. In the absence of statute, such a suit may be revived by means of a bill of revivor, which is a continuance of the original bill to bring some new party before the court, when, by death or otherwise, the original party has become incapable of prosecuting or defending the suit, and the suit is, as it is in equity technically called, "abated,”—that is, suspended in its progress. The object of a bill of revivor is to bring before the court some new party, when the original party 1 Story, Eq. Pl. § 354; Mitford, Eq. Pl. 56; Cullum v. Batre's Ex'x, 2 Ala. 415; Doe d. Duval's Heirs v. McLoskey, 1 Ala. 708; Nicoll v. Roosevelt, 3 Johns. Ch. (N. Y.) 60. 2 Clarke v. Mathewson, 12 Pet. (U. S.) 164; Hone v. Dillon, 29 Fed. 465. Brooks v. Laurent, 98 Fed. 647. For practice in federal courts, see United States Equity Rule 56. has become incapable of prosecuting or defending the suit. Where a statute authorizing revival on summary application requires notice to be given by personal service, within or without the jurisdiction of the court, if the parties against whom the suit is sought to be revived are beyond the jurisdiction of the court, or cannot be found, and no provision is made for proceeding, by advertisement or otherwise, against absentees, a bill of revivor becomes necessary. So, also, where such statute exists, a bill of revivor is also necessary where supplemental matter must be combined with that appropriate to a pure case of revivor. It is held that a statutory method of reviving a suit is not exclusive, but that parties may still proceed by bill of revivor.8 § 849. When proper. Wherever a suit abates by death, and the interest of the person whose death has caused the abatement is transmitted to that representative which the law gives or ascertains,—as an heir at law, executor, or administrator, so that the title cannot be disputed, at least in a court of chancery, but the person in whom the title is vested is alone to be ascertained, the suit may be continued by a bill of revivor merely. So, also, in the absence of statute, marriage of a female complainant constitutes an abatement, and a bill of revivor becomes necessary. But if a female complainant marries pending a suit, and afterwards, before revival, her husband dies, a bill of revivor is not necessary, her incapacity to prosecute the suit being removed, and the subsequent proceedings can be had in the name and with Douglass v. Sherman, 2 Paige (N. Y.) 361; Kennedy v. Bank of Georgia, 8 How. (U. S.) 586. 6 Wilkinson v. Parish, 3 Paige (N. Y.) 653. 72 Barbour, Ch. Pr. 34; Hall v. Hall, 1 Bland (Md.) 130; Ross v. Hatfield, 2 N. J. Eq. 363; Douglass v. Sherman, 2 Paige (N. Y.) 358; Barnett v. Powers, 40 Mich. 317. 8 Reid v. Stuart's Ex'r, 20 W. Va. 382. See, to the contrary, Keep v. Crawford, 92 Ill. App. 587. 2 Barbour, Ch. Pr. 35; Mitford, Eq. Pl. 69; Douglass v. Sherman, 2 Paige (N. Y.) 360; Ross v. Hatfield, N. J. Eq. 363. the description which she has acquired by the marriage.10 Not every death creates an abatement. If the interest of a party dying so determines that it cannot affect the suit, and no person becomes entitled thereupon to the same interest, the suit does not abate so as to require any proceeding to warrant the prosecution of the suit against the remaining parties; but if the decedent be the only complainant or defendant, no subject-matter of litigation remains, and the suit ends.11 So, if the whole interest of a party dying survives to another party, as if a bill be filed by or against joint tenants, and one dies, the suit may be continued by or against the survivor, without revivor.12 If the complainant, in a bill of interpleader, dies after a decree that the defendants interplead, there will be no abatement of the suit, which has terminated as to the complainant, and no revivor against the representatives of the complainant is necessary.18 Where one of the complainants in a bill for foreclosure dies after a decree of sale, but before sale, a sale made without revivor will be set aside.14 Where the existence of a public corporation was terminated, and its duties and liabilities devolved upon certain officials, the court allowed a bill of revivor against such officials to be maintained.15 In all cases where, by the death of a party, the suit is abated, and his interest or title to the property in controversy is transmitted, by devise or in 10 2 Barbour, Ch. Pr. 34; Douglass v. Sherman, 2 Paige (N. Y.) 360; Bowie v. Minter, 2 Ala. 406; Quackenbush v. Leonard, 10 Paige (N. Y.) 131. The marriage of a female defendant pendente lite does not abate the suit, and it is only necessary in that case to obtain an order that the cause proceed against her by her new name, in conjunction with that of her husband. Quackenbush v. Leonard, 10 Paige (N. Y.) 131. 11 2 Barbour, Ch. Pr. 38; Mitford, Eq. Pl. 58. 12 2 Barbour, Ch. Pr. 38; Fallowes v. Williamson, 11 Ves. 309. 13 2 Barbour, Ch. Pr. 38; Story, Eq. Pl. §§ 357, 358. 14 Glenn v. Clapp, 11 Gill & J. (Md.) 1; Requa v. Holmes, 16 N. Y. 193; Washington Ins. Co. v. Slee, 2 Paige (N. Y.) 365. See, however, Trenholm v. Wilson, 13 S. C. 174; Burbridge v. Higgins' Adm'r, 6 Grat. (Va.) 119; Kellogg v. Tout, 65 Ind. 146; Harrison v. Simons, 3 Edw. Ch. (N. Y.) 394; Hays v. Thomae, 56 N. Y. 521. 10 Hemingway v. Stansell, 106 U. S. 399. See, also, for revivor on dissolution of a corporation, Griswold v. Hilton, 87 Fed. 256. any other manner, so that the title, as well as the person entitled, may be a subject of litigation in a court of chancery, the suit cannot be continued by a bill of revivor. In such cases an original bill in the nature of a bill of revivor and supplement must be filed, on which the question of title may be put in issue and litigated.10 If the whole interest of a party dying sur vives to another party, so that no claim can be made by or against the representatives of the party dying, as if a bill is filed by or against trustees or executors, and one dies not having possessed any of the property in question, or done any act relating to it which may be questioned, the proceedings do not abate. So, if a surviving party can sustain the suit, as in the case of several creditors, complainants on behalf of themselves and other creditors, the proceedings do not abate.17 Yet, if one of the original complainants in such suit dies after a decree, his personal representative may, if he thinks proper, revive the suit 18 850. There must be matter to be litigated. In order to authorize a revivor of a suit, it is necessary that there be matter to be litigated. Thus, a bill will not lie upon. an abatement, after answer to a bill for discovery, for, in such case, the entire object of the bill has been obtained.19 § 851. Revivor for part of matter in litigation. A suit which has become abated may be revived as to part only of the matter in litigation, or as to part by one bill, and 16 Douglass v. Sherman, 2 Paige (N. Y.) 361; Peer v. Cookerow, 14 N. J. Eq. 361; Huet v. Say, Sel. Cas. t. King, 53; Ryland v. Green, 5 Brown, Parl. Cas. 403; Russell's Heirs v. Craig's Devisee, 3 Bibb (Ky.) 377; Barnett v. Powers, 40 Mich. 317. 17 Boddy v. Kent, 1 Mer. 364; Story, Eq. Pl. § 357; Masters v. Barnes, 7 Jur. 1167; Young v. Kelly, 3 App. D. C. 306; Mitford, Eq. Pl. 58, 59; Fallowes v. Williamson, 11 Ves. 306. 18 2 Barbour, Ch. Pr. 39; Burney v. Morgan, 1 Sim. & S. 358. 19 Story, Eq. Pl. § 371a; 2 Barbour, Ch. Pr. 38; Horsburg v. Baker, 1 Pet. (U. S.) 232; Gould v. Barnes, 1 Dickens, 133; Dodson v. Juda, 10 Ves. 31. |