Green v. Watkins, 19 U.S. 260 (1821)
U.S. Supreme CourtGreen v. Watkins, 19 U.S. 6 Wheat. 260 260 (1821)
Green v. Watkins
19 U.S. (6 Wheat.) 260
In real or personal actions at common law, the death of parties before judgment abates the suit, and it requires the aid of some statutory provision, like that of the thirty-first section of the Judiciary Act of 1789, ch. 20, to enable the suit to be prosecuted by or against the personal representative or heir of the deceased, where the cause of action survives.
In writs of error upon judgments already rendered in personal actions if the plaintiff in error dies before assignment of errors, the writ abates at common law, but if after assignment of errors the defendant may join in error, and proceed to get the judgment affirmed, if not erroneous, and may then revive it against the representative, of the plaintiff.
But a writ of error in personal actions does not abate by the death of the defendant in error, whether it happen before or after errors assigned, and the personal representatives may not only be admitted voluntarily to become parties, but scire facias may issue to compel them.
By the rules of this Court, if either party in real or personal actions dies pending the writ of error, his representatives in the personalty or realty may voluntarily become parties, or may be compelled to become parties, in the manner prescribed by the rule.