Ex parte Swan
Supreme Court of Alabama
Petition for a mandamus to the Circuit Court of Benton, commanding said court to vacate a certain judgment rendered at the Fall term, 1852, Hon. Thos. A. Walker presiding. It appears from the record attached to the petition, that Eli M. Driver commenced an action of ejectment in said court, against one Alexander as tenant in possession, for the recovery of certain lands.
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Petition for a mandamus to the Circuit Court of Benton, commanding said court to vacate a certain judgment rendered at the Fall term, 1852, Hon. Thos. A. Walker presiding. It appears from the record attached to the petition, that Eli M. Driver commenced an action of ejectment in said court, against one Alexander as tenant in possession, for the recovery of certain lands. The petitioner, William G. Swan, was permitted to defend as landlord of said Alexander, and the cause seems to have afterwards proceeded under the style and title of Doe ex dem. Driver v. Swan & Alexander. At the trial of…
1Opinion of the CourtGibbons, J.
As a general rule, it is undoubtedly true that a judgment for or against a dead man is a nullity. This proposition has been so often recognized in this court, that it is not deemed necessary to cite authorities in support of it.
But, whilst this is true as a general rule, it seems to be equally true that, in the action of ejectment, at common law, the death of the lessor of the plaintiff does not abate the suit, and *196the nominal plaintiff is deemed competent to continue the action, at least for the recovery of the land and nominal damages.—Adams on Ejectment 820, 335; 1 Wendell 27; Frier et al.…
2Cases cited4 opinions
- Frier v. Jackson ex dem. Van AllenCourt for the Trial of Impeachments and Correction of Errors · 1811
- State ex rel. Nabor's HeirsSupreme Court of Alabama · 1845
- Camp v. ForrestSupreme Court of Alabama · 1848
- Jordan v. AbercrombieSupreme Court of Alabama · 1849
3Cited by8 opinions
- Evans v. WelchSupreme Court of Alabama · 1879
- Hunt's Heirs v. Ellison's HeirsSupreme Court of Alabama · 1858
- McKay v. BroadSupreme Court of Alabama · 1881
- Jay v. SteinSupreme Court of Alabama · 1873
- Tarver v. SmithSupreme Court of Alabama · 1861
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