76 Ark. 122 | Ark. | 1905
(after stating the facts.) The question to-be first considered is whether or not the case can now be revived.
The statute provides that where either of the parties to a pending action dies, the cause may, on motion of any party interested, he revived in the name of a special administrator, if there is no general administrator. Kirby’s Dig. § § 6298-6300. It is further provided that “an order to revive an action in the name of the representatives or successor of a plaintiff may be made forthwith, but shall not- be made without the consent of the defendant after the expiration of one year from the time the order might have been first made.” Kirby’s Dig. § 6314. And that “when it appears to the court by affidavit that either party to an action has been dead * * * for a period so long that the action cannot be revived in the names of - his representatives or successors without the consent of both pai'ties, it shall order the action to be stricken from the docket.” Kirby’s Dig. § 6315. This statute applies to cases pending in this court on appeal, as well as to cases pending in trial courts. State Fair Association v. Townsend, 69 Ark. 215.
The statute is mandatory in its terms, and the revivor, to be effective, must be applied for within the time pointed out. An action, after the death of either of the parties, can proceed no further until it has been properly revived; and the object of the statute is to fix. a time within which those interested in the suit may have it revived, and, if not revived within the time prescribed, to require an abatement. When the plaintiff dies during the pendency of the action, any person interested in the further prosecution thereof may have a revivor in the name of the administrator or executor, if there be such, and the right of action be one that survives in favor of the personal representative; and if there be no general administrator or executor, the revivor shall be in the name of a special administrator appointed by the court in which the action is pending. The order to revive may be made forthwith — as soon as the court in which the action is pending convenes after the death of the plaintiff, and must be made within one year after that time, except by consent of parties. The limitation of time in the statute applies equally where there is no general administrator or executor as where there is one, because in such event the persons interested may have a revivor in the name of a special administrator.
Appellant Anglin died on April 5, 1904, and more than one year has elapsed since the order to revive might have first been made, and it cannot be now made.
The motion to dismiss the appeal and strike the case from the docket of this court is sustained, leaving the decree appealed from in full force. It is so ordered.