Tucker v. Wilson

Citations

• 68 Miss. 693

Syllabus

<p>1.Abatement. Suit by infants. Death of next friend. Revivor. Limitations.</p> <p>Minor complainants by next friend appealed in 1873 from a decree sustaining a demurrer to their bill, and the decree was reversed at defendants’ costs and answer required. The costs were not paid, and no mandate was issued. The next friend died, and no steps were taken in the cause for fifteen years. Complainants, being all of age, some of them for more ' than ten years, filed their bill against the same defendants to revive the original suit. Held, that the suit was not abated by the death of the next friend, or by the coming of age of complainants, but, as between the parties, continued a pending suit; no statute of limitations being applicable.</p> <p>2.Same. Death of next friend. Revivor. When necessary.</p> <p>Under such circumstances it was not necessary for complainants to file a bill of revivor, but only to appear and prosecute, as adults, the original suit. But such bill, though not necessary, was proper as a method of notifying the court of complainants’ intention to prosecute such suit, and as giving defendants notice, that they might answer as ordered by the supreme court.</p> <p>3.Same. Res judicata. Former trial not on merits.</p> <p>The right of the complainants to intervene and prosecute in their own right such suit begun by their next friend, was not affected by a decree dismissing, without prejudice, a chancery suit brought by them against the same defendants to cancel their claim to the land, or by the abandonment by complainants of an ejectment suit brought to recover the land ; these suits having been brought under a misconception of the course proper to be pursued.</p> <p>4.Same. Purchase lis pendens. Case.</p> <p>A sale by the trustee of the land, the subject of the original suit, and its purchase by the beneficiary after the appeal, both being parties to the suit, conferred no additional rights ; although, in making the sale, they were misled by a mistake of t