62 Neb. 375 | Neb. | 1901
The present action is one in equity pending in this court on an appeal from a judgment rendered in the district court of Lancaster county in favor of the defendants, appellees in this court. The cause was submitted on its merits for a decision on the issues raised by the pleadings and the evidence, and an opinion handed down October 18, 1900, affirming the decree of the loAver court. Hayden v. Huff, 60 Nebr., 625. A motion for a rehearing was in due time presented, which, on consideration, Avas sustained and a rehearing.allowed.
At this stage of the proceedings, the appellee, Alice A. Minick, suggested the death of plaintiff and appellant, ac
Under the title, “Revivor of Actions,” sections 456-470, of the Code of Civil Procedure, it is provided by section 459 that the revivor shall be by a conditional order that
Prom the foregoing, and other sections relating to the subject, the following is fairly deducible from our statutory enactment concerning the proceedings of a summary character by which an action may be ordered revived in the name of the proper party in interest, where the cause of action survives: (1.) By the consent of all parties in interest an order of revivor may be entered at any time. (2.) By a conditional order seiwed on the opposite party or parties, if no cause is shown to the contrary, the order of revivor may be made at any time within one year from the time the order might have been first made. (3.) That
By section 45 of the Code it is provided that in case of the death or other disability of a party, where the cause of action survives, the court may alloAV the action to continue by or against his representative in interest. This section has been construed as giving the right to revive an action independent of the provision of the statute under the title of revivor heretofore referred to. In Rakes v. Brown, 34 Nebr., 304, it is decided by the fourth paragraph of the syllabus that: “The mode provided by title 13 of Civil Code, for reviving actions by conditional order of revivor, is not exclusive. Section 45 of the Code confers authority upon the court to alloAV the action to be prosecuted by or against the representatives or successors in interest of a deceased party. For this purpose supplemental pleadings may be filed and summons served as in the commencement of an action. Fox v. Abbott, 12 Nebr., 333; Carter v. Jennings, 24 Ohio St., 182.” Says Norval, J., in the opinion in that case: “True, no conditional order of revivor in the names of the heirs was made by the district court. But the mode provided by title 13 of the Civil Code, for reviving actions by conditional order, is not exclusive. Section 45 of this Code provides, among other things, that fin case of the death, or other
In the opinion in Fox v. Abbott, cited above, Maxwell, J., who wrote the opinion, says, “The chapter providing for a summary revivor of actions is not exclusive. The court undoubtedly has power under section 45 of the Code, to allow the action to be prosecuted by or against the representatives of a deceased party, in which case supplemental pleadings may be filed and summons served as in the commencement of an action. And this is the practice in Ohio under a similar statute. Carter v. Jennings, 24 Ohio St., 182.”
While somewhat in the nature of a dictum, because the question for decision Avas the limitation as to time of reviving a dormant judgment, it is observed by Maxavell, J., in Hunter v. Leahy, 18 Nebr., 80, 81, that “the mode of reviving actions by motion is not exclusive. A party may, after the expiration of a year, revive an action by bill or supplemental petition. Carter v. Jennings, 24 Ohio St., 188; Fox v. Abbott, 12 Nebr., 328; Pendleton v. Fay, 3 Pai. Ch. [N. Y.], *204; 2 Daniels, Ch. Pr. (4th ed.), 1509; Maxwell, Pl. & Pr. (3d ed.), 695.”
It is insisted, however, by counsel for appellee that, conceding the summary proceedings authorized by the statute on a conditional order are not exclusive, yet the limitation as to time must control, whatever may be the mode pursued to revive, and if the action is not revived by either method within the time limited, further proceedings are forever barred, and the action must stand abated. If the summary proceedings are to be construed as not exclusive, we know of no sound reason for taking the position that
But there exists yet another and a stronger reason for holding the limitation as to time mentioned in the summary statute is not of general application to all proceedings brought to revive an action because of the death of a party in interest. In the first place, it is provided unequivocally that by the summary method pointed out a final order of revivor shall not be made wdthout the consent of the parties after one year from the time when it might have been first made. Secondly, the provision is that after the time has elapsed in Avhich an order of revivor may be made Avithout the consent of all parties, the court shall, AArhen it is made to appear by affidavit that such is the fact, strike the action from the docket.' It is noAAdiere provided that the action shall abate, or that no revivor shall thereafter be had. The action is only stricken from the docket. This is not, in our view of the lawq equivalent to dismissing the case out of court, either by dismissing the action, or the appeal, or the proceedings in error. The legal effect is to suspend further proceedings until some other steps are taken by which a final disposition thereof can be made. The case yet remains in the court in which it is pending. It has not been finally disposed of. It is a temporary abatement of the case, Avhich must continue until the proper steps are taken by AArhich the action
In Carter v. Jennings, supra, under Code provisions for the revivor of actions similar to our own, and from which ours were almost bodily taken, it is held by the supreme court of Ohio, first, that the chapter providing for the summary proceedings is not exclusive, but that the court, under the general provision for the revivor of actions (our section 45), in the exercise of a sound discretion, is authorized to allow actions to be prosecuted by or against the representatives or successor in interest of a deceased party, for which purpose supplemental pleadings may be allowed, and process served, as in the commencement of an action; and second, that the court, in the exercise of the discretion by it possessed for such purpose, is governed by equitable principles, which require reasonable diligence and good faith on the part of those invoking its action; and where the time has elapsed within which an action can be revived by a conditional order under the chapter providing for Summary proceedings, the application for leave to continue the suit by supplemental pleadings may be granted or refused, according to the nature and circumstances of the case. Says White, J., in writing the opinion: “The limiting the right of continuing an action against the representative of a party to the year within which a conditional order may be made, would evidently in many cases work great inconvenience, and sometimes defeat the ends of justice. In equity cases, the parties are often very numerous, many of them living remote from the place of litigation. If the failure to revive an action against the representatives of a necessary party within the time allowed for a conditional order, necessarily defeats the action, the consequences may be very serious to litigants 'chargeable with no laches. That a new suit may be brought is true;
In Black v. Hill, 29 Ohio St., 86, the case of Carter v. Jennings, supra, was cited, approved and followed. It was also therein held that the provision of the Code for reviving or continuing actions in favor of or against the successors in interest of a party, or the representatives of a deceased, party, may be applied to proceedings in error, and that the court was authorized, on the application of the representatives of a deceased party, to allow them to become parties, and the proceedings in error to be carried on in their names, although more than a year may have intervened from the death of the original party to tlie time of the application.
In Pavey v. Pavey, 30 Ohio St., 600, it was also held that notwithstanding more than a year had elapsed after the death of the original party, the action might be revived by or against his representatives or successor in interest, following the two prior decisions on the same point.
In Reid v. Stuart, 20 W. Va., 382, it is held that an action in equity may be revived either by the statutory mode or by bill of revivor. Of the same import is Hall v. Hall, 1 Bland’s Ch. Rep. [Md.], 130. See, also, 18 Ency. Pl. & Pr., 1100, and authorities cited in notes 4 and 5; McArthur v. Williamson, 45 Fed. Rep., 154; Pingree v. Coffin, 12 Gray [Mass.], 288; Barr v. Chapman, 11 Ohio Cir. Ct., 196; Russell v. Craig, 3 Bibb [Ky.], 377.
By the application of the equitable principles heretofore considered to the facts and circumstances in the case at bar, relating to the right of revivor, we arrive at the conclusion that the supplemental petition for revivor is well grounded, and ought to he sustained. An order will, therefore, bé entered, reviving the action in the name of the petitioner as the representative of the deceased plaintiff, and directing its continuance in his name in such representative capacity.
Judgment accordingly.