136 Ky. 66 | Ky. Ct. App. | 1909
A judgment was entered in the Boyd circuit court on August 27, 1907, in this action, in favor of the deJendants. The plaintiff, Julia Davis, entered a motion for new trial, whic-li was overruled on September 3, 1907, and she was ganted an appeal to this court. She died on April 15, 1909. On August 20, 1909, a copy of the judgment was filed with the cleric of this court, and an appeal was granted. On October 25, 1909, W. M. Prichard qualified as the administrator of Julia Davis, and has entered a motion to revive the appeal in his name as administrator, the appellees have entered a motion to dismiss the appeal, and the case has been submitted on these motions.
Julia Davis did not prosecute the appeal granted her in the circuit court, and that may be regarded as abandoned. By section 745 of the Civil Code of Practice an appeal shall not be granted except within two a ears next after the right to appeal first accrued, subject to certain exceptions as to infants, persons of unsound mind, etc. But there is no exception in favor of one who dies after the rendition of the judgment and before the talcing of the appeal. The statute began to run against Julia Davis when the judgment was rendered, and, there being no exception in the statute covering the matter, it continued to. run until the two years expired; and if the appeal was not taken within two years it was barred by limitation. Bv section 734 an appeal shall be granted as a matter of right by the clerk of this court on application of either party or his privy, upon filing in the office of the clerk a copy of the judgment from which he appeals. In Spalding v. Wathen, 7 Bush, 659, it was
Under these decisions it is manifest that, if this case had progressed to a final hearing without any suggestion as to the death of Julia Davis, a judgment of this court would not have been void because in fact she had died 'before the appeal was taken; and, if the judgment would not have been void in that case, it'is hard to see upon what principle it can be maintained that the filing of the copy of the judgment
At common law there could be no suit without a party who sued and also a party who was sued. If the plaintiff was dead when the writ issued, it was void for the reason, as given, that there was nobody to sue. If the defendant was dead when the writ issued, it was also void, for the reason, as given, that there was nobody to be sued. No distinction was attempted. to be made between the death of the plaintiff and the death of the defendant; and many writs were thus held void. The writ being void, the judgment entered upon it was also held void, and so many judgments were fruitless. To remedy this, as was pointed out in Spalding v. Wathen, it was provided in our Civil Code of Practice, by section 518, that a
The motion to dismiss the appeal is overruled and the motion to revive the action in the name of the administrator is sustained.