20 Kan. 189 | Kan. | 1878
The opinion of the court was delivered by
“We hereby waive the issuing of a summons in the within entitled cause, and enter the appearance of the defendant J.*191 P. McMurtry, and agree to file our pleas or orders, demurrer or answer, within twenty days from the filing hereof, with the clerk of the district court. Pendery & Goddard,
“Attorneys for J. P. McMurtry, defendant.”
On the same day, to-wit, 24th June 1875, Green filed said new petition in the case of Jones v. McMurtry. Also, on the same day, Pendery & Goddard as attorneys for McMurtry filed two motions in the case of Jones v. McMurtry. The first was to set aside and annul all proceedings in said case of Jones v. McMurtry, because said summons and sa-id order of attachment were not served until after Jones’s death. The second was to strike from the files of said case of Jones v. McMurtry said new petition, because it was improperly filed in that case, and because it was a new and original petition, belonging to a new, distinct, and original case. Also, on the same day, McMurtry gave notice to Green that he would take certain depositions, which depositions were afterward taken and read on the hearing of said motions. The court below sustained both of said motions. Green then presented to the court his letters of administration on the estate of said Jones, and moved the court to revive the action df Jones v. McMurtry in .the name of Green as administrator of the estate. The defendant objected to the hearing of the motion, on the ground that no written notice thereof had ever been given to him, and the court sustained the objection, and ordered that the administrator give such notice. Green then as administrator of said estate brought the case to this court.
Revivor of of actions. Irregular proceedings, aside on motion of aggrieved party. By what authority Green brings the case to this court, he has not informed us. He is not a party to the action. The action has never been revived in his name, and courfc below has never refused to revive it. The question of revivor is still pending undisposed of in the court below. The action still stands in that court in the name of Jones; and Green is no more a party thereto than any other person is. Whether the action will ever be revived, and in whose name it may eventually be revived, are
Of course the filing of said new petition in the old action of Jones v. MeMurtry was irregular. Nothing that the defendant or his counsel had done authorized it. The defendant’s counsel merely waived “summons” in the new action which they supposed was about to be commenced; and did not waive a revivor in the old action. Nor did they even authorize such a revivor. They of course knew that it did not require a “summons” to revive an action. But when they observed that this new petition had been filed in the old action, they immediately, and on the same day on which they waived summons, and on which such petition was filed in the old action, made a motion to strike it from the files of such old action, aiM also gave notice that they would take depositions, which depositions they afterward read on the hearing of said motion.