27 Minn. 475 | Minn. | 1881
In 1865, respondent Berkey commenced an action against George B. Judd and Orange Walker. The cause was referred to and tried by a referee, who, in April, 1871, filed his report directing judgment for the plaintiff and against the defendants for $10,032.10. The defendants made
The claim of the respondent was not, under the statute, the proper subject of an action against the executors. The demurrer to the complaint against them ought, therefore, to have been sustained. The question on the other appeal is, ought the claim to have been presented to, and passed on by, the commissioners? If it ought, it is barred because not so presented. The case is that of an action pending at the death of the defendant. We find in the statute two pro
Gen. St. 1878, c. 66, § 274, reads: “If a party dies after verdict or decision upon an issue of fact, and before judgment, the court may nevertheless render judgment thereon. Such judgment is not a lien on the real property of the deceased party, but is payable in the course of administration on his estate.” This means that the judgment may be entered in such case without making the executor .or administrator a party. When entered, it fixes the liability of the estate to pay it “in the course of administration.” To make it “payable,” no other court need pass upon it. The whole jurisdiction to determine the liability is retained in the court which has the action. It is necessarily so, unless the death of the party is to operate to vacate the verdict or decision upon the issue of fact, or to take away the unsuccessful parties’ right to complain of it. That verdict or decision, could not be presented to the commissioners as a claim against the estate, for they could not determine whether it. was erroneous or not — whether it ought to be set aside or to.
The order or judgment of the district court, directing the executors to pay the judgment, is affirmed. The order overruling the demurrer is reversed.