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Swann v. Marks9/13/1996
. We agree. To toll the statute of limitations, a suit must be filed against a proper party. Virginia statutes do not authorize an action against an "estate." Code §§ 8.01-229(B)(1) and (B)(2) direct the decedent's personal representative to file any personal action which the decedent may have been entitled to bring and to defend any personal action which could be brought against the decedent. This limitation is further highlighted by the language of the statute which allows claims to be filed against the property of the estate, but provides that actions may only be filed against the decedent's personal representative. Code §§ 8.01-229(B)(2) and (B)(4). This statutory scheme is consistent with the principle that "suits and actions must be prosecuted by and against living parties." Rennolds v. Williams, 147 Va. 196, 198, 136 S.E. 597, 597 (1927). A motion for judgment against an "estate" is a nullity and cannot toll the statute of limitations.
Furthermore, the substitution of a personal representative for the "estate" is not the correction of a misnomer. Misnomer arises when the right person is incorrectly named, not where the wrong defendant is named. Rockwell v. Allman, 211 Va. 560, 561, 179 S.E.2d 471, 472 (1971). The personal representative of a decedent and the decedent's "estate" are two separate entities; the personal representative is a living individual while the "estate" is a collection of property. Thus, one cannot be substituted for another under the concept of correcting a misnomer.
Swann also contends that the trial court erred because the non-suit order was a final order, and therefore the order allowing substitution was not subject to modification in the refiled action. To challenge the substitution order, Swann contends that Marks was required to appeal the non-suit order. A non-suit order, however, is ordinarily not considered a final judgment for purposes of appeal. McManama v. Plunk, 250 Va. 72, 32, 458 S.E.2d 759, 761 (1995). A non-suit order is a final, appealable order only when a dispute exists regarding the propriety of granting the nonsuit. Id. Here, there is no dispute as to the entry of the non-suit order. The non-suit order is not a final judgment as to the substitution order and did not clothe the substitution order with the force of res judicata. Thus, the trial court's consideration of Marks' special plea of the statute of limitations, including consideration of the substitution order, was proper.
For the reasons expressed, we will affirm the judgment of the trial court.
Affirmed.
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