25 Mo. 88 | Mo. | 1857
delivered the opinion of the court.
We see no warrant in the law for the action of the court; below in abating this suit. The question is not, who are alL the proper parties to the proceeding; but whether there were; any of the proper parties in court when it was abated. The 12th section of the 3d article of the practice act of 1849 enacts that “ suits may be revived in the cases and in the manner and with the effect now provided in article 5 of practice-in chancery, so far as may be consistent with the provisions-of this act.” Now if, as contended for by the defendant in error, this section continues in force the 19th section of the; 5th article of the act concerning chancery practice (R. C. 1845, p. 850), we see no authority in that section to sustain the action of the court below. The section referred to; provides that “ in all cases where the representatives of a deceased complainant or defendant shall not be made parties, according to the provisions of this act, on or before the third' term after the suggestion of the death, the suit shall abate as to such deceased party and the interest of his representatives therein, and the cause shall proceed in favor of and against the: survivors.” Now there being both a plaintiff and defendant in being on the record, it is obvious that this section conferred on the court no authority to abate the entire proceeding. The most that could have been done was to have abated it as to those who had not been brought in as required by law. It is singular, if the fact is as it is represented to be, that
It was said that the appearance of the representative of the plaintiff was made without notice to the opposite party. This irregularity was cured by the subsequent steps taken in the cause. At a term afterwards, both parties appeared, and the cause was continued for the reason that no notice of the revival had been given. This surely healed the error of the omission. The other judges concurring, the judgment will be reversed, and the cause remanded.
