53 Neb. 116 | Neb. | 1897
On questions differing widely from those now presented an opinion has been filed in this case. (Edney v. Baum, 44 Neb. 294.) After the case had been remanded to the district court of Lancaster county an amended petition was filed in which “Gertrude T. Edney and Patrick Oavanangh, as executors of the last will Of James A. Edney, deceased,” alone were named as plaintiffs.
Section 336, chapter 23, Compiled Statutes, provides: “When an executor or an administrator shall die, be removed from office, or resign, or when his letters shall be revoked, during the pendency of any suit in which he is a party, the suit may be prosecuted by or against the executor or administrator appointed in his place, if any shall be appointed, in like manner as if it had originally been commenced by or against such last executor or administrator.” The defendants in error have insisted very strenuously in argument that the removal of the executrix and executor caused an abatement of the action, but it will be noticed upon a careful consideration of the language just quoted that no such result is therein contemplated. This is significant in view of the sections of the Code of Civil Procedure, which we shall now consider. It is provided in section 45 that “An action does not abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein, during its pendency, if the cause of action survive or continue. In the case of the marriage of a female party, the fact being suggested on the record, the husband may be made a party with his wife; and, in the case of the death or other disability of a party, the court may allow the action to continue by or against his representative or successor in interest.” Sections 466 and 467 of said Code provide that actions may be revived in the names of the representatives and successors of
Dismissed.