1 Kan. App. 510 | Kan. Ct. App. | 1895
The counsel for the plaintiff contends that this action should be revived in the name of the executors, for the reason that Allen V. Wilson has appeared in this court by his counsel, and filed his brief herein. We think this contention is not well founded. The right to revive this action is clearly barred by § 434 of chapter 80, General Statutes of 1889, which reads as follows :
“Sec. 434. An order to revive an action, in the name of the representatives or successor of a plaintiff, may be made forthwith, but shall not be made without the consent of the defendant after the expiration of one year from the time the order might have been first made; but where the defendant shall also have died, or his powers have ceased in the meantime, the order of revivor, on both sides, may be made in the period limited in the last section.”
It is clearly shown that the motion to revive was not made until after one year from the death of the plaintiff, W. S. Houghton, and the appointment and qualification of his executors, and from the time the order might have been first made. It also clearly appears that the defendant, Allen V. Wilson, is objecting to the revivor being made, and it nowhere appears that these defendants, or either of them, have given their consent to a revival of this action. For these reasons, the motion to revive will be overruled.
Section 435 of chapter 80 of the General Statutes of 1889, reads as follows :
“Sec. 435. When it appears to the court, by affidavit, that either party to an action has been dead for a period so long that the action cannot be revived in the names of his representatives or successors without the consent of both parties, or when a party sues*518 or is sued as a personal representative, that his powers have ceased, the court shall order the action to be dismissed at the costs of the plaintiff. ’ ’
It appears to this court, by the affidavit of O. M. Wilson, and also by the motion to revive filed herein, that the plaintiff, W. S. Houghton, had been dead for more than one year, and these executors had been appointed and qualified for more than one year prior to the time of filing the motion to revive. For these reasons, the motion of the defendant to dismiss will be sustained, and this case dismissed at the costs of the plaintiff.
