The opinion
Manning, J.,
(dissenting). — The statute on which the question in this case depends, is as follows: “ No action abates by the death or other disability of the plaintiff or defendant, if the cause of action survive or continue; but the same must, on motion within eighteen months thereafter, be revived in the name of or against the legal representative of the deceased, his successor or party in interest.” — § 2908 (2542) of the Code of 1876. This was evidently enacted for the remedial purpose of intercepting and delaying — not of hastening — the abatement of suits; an object that should be kept in mind when construing the act. Under this idea, we took notice in Ex parte Jones, 54 Ala. 108 , of the different state, according to the common law, of an action in which the plaintiff died, and of an action in which the plaintiff suing as an executor or administrator, had ceased to be such, but was still living. In the former instance, the action would abate by the mere death of the plaintiff, and a" judgment afterwards rendered in it would be wholly void; while in the latter case, the suit would not abate, nor would a judgment rendered in it be void. The plaintiff living would keep the action alive, and he might prosecute it to a judgment in a suit, like the present, on a note payable to him as administrator, unless his removal from the office which entitled him to maintain it, was pleaded and shown. We consequently held in that case, in which the plaintiff, an administrator, had been removed, that when that fact was more than eighteen months afterwards brought to the attention of the court, the motion made at the same term to substitute his successor for him as plaintiff, ought to have been granted.
The statute being remedial, and its application tending to save costs, I think the decision made in that case ought to be adhered to, and that in the present case the judgment of’ revivor in the Circuit Court ought to be affirmed.