Coon v. KnappCoon v. Knapp
- Reporters:
- Before:
- Mason
This motion is founded upon § 121 of the Code, which provides that, “No action shall *176abаte by the death, marriage, or other disability of a party, or by the transfer of аny interest therein, if the cause of action continue or survives.” In case of death, marriage, or other disability of a party, the court, on motion, at аny time within one year thereafter, or afterwards, on a supplemental сomplaint, may-allow the action to be continued by or against the representative, or successor in interest. (Code, § 121.) This section-is too plain to admit of doubt in its construction. It allows the court to continue the action on motiоn at any time within a year after the death of a party, and after the yeаr it allows a continuance on a supplemental complaint.
When thе legislature say the court may allow the action to be continued, on mоtion, at any time within a year after the death of a party, or after that time on a supplemental complaint, it is equivalent to saying they shall not allоw it to be continued on motion after a year, but may on supplemental complaint. The statute is a limitation upon the power of the court. It is toо plain for discussion, when it is said by the legislature that the courts may allow the suit to be continued at any time within a year by motion, and afterward by supplemental сomplaint, that they intended to limit the right of renewal by motion to the year after the death of the party.
I held, in the case of Greene agt. Bates, (7 How. Pr. R. 296,) that the court could not continue the suit by motion аfter the year had gone by. That case was decided in 1852, and reported, and has never been questioned by the courts or commentators upon our present system of practice. The elementary writers have all approved of this decision, and put the same construction upon the section. (Van Sandtvoord’s Plead. 380-383; Whittaker’s Pr. 544, 2d ed.; Voorhies’ Code, 115, note (d) 4th ed.) Whittaker says, after citing § 121, it will of course be observed that a premium is here givеn to diligence, and that if the party move at once in the matter his coursе is easier and simpler than that which he will be obliged to pursue in case he delay his application for more than one year after the suit has abated, for in the latter case a supplemental complaint must be filed. (1 Whit. Pr. 544.)
*177Mоnell, in his book of practice, says, this motion must be made within one year after the happening of the event, and cannot be made afterwards. (Monell‘s Pr. 23, 24.) Section 174, of the Code, has no application to motions under § 121. It will not do to read that section as controling § 121. Section 174 allows the court, in its discretion, tо permit certain things to be doné after the time limited by this act. It will not do, however, tо apply this section to § 121, for it would utterly nullify this provision of § 121 upon which we have bеen commenting ; for if we construe § 121 to limit the court to one year in granting the relief sought in this case by motion, and then say that § 174 allows the court to grant it at any timе after that in its discretion, it deprives § 121 of all its force and effect; for the court never grants such motions within a year, except in its discretion.
But again: if it be admitted that § 174 allows the court, in its discretion, to grant this motion after the year has elapsed, I do not see how we can grant the motion in this case on the рapers before us, for the reason that no excuse is shown or attempted in the papers before us for not making the motion within the year. The granting оf this motion on the papers before us would be depriving § 121 of all effect whatever, as a limitation upon time in granting these motions. It is no answer to say, the Code gives the parties two years in which to appeal from the judgment. This seсtion certainly does not mean to embrace those cases which are not in a condition to be appealed, and certainly not a case which has gone into judgment, been appealed to general term and affirmed, and where the party died, and there is no party defendant to the action which has any rights to assert.
The motion should be denied.