Lee v. O'Shaughnessy

| Minn. | Apr 15, 1873

By the Court.

Berry, J.

Thomas O’Shaughnessy (who was the principal defendant in this action as it was originally commenced,) having deceased, plaintiff attempted to continue» the action by bringing in his (the said Thomas’s,) personal representative and heirs as defendants. Prom the language of the -order to-show cause, and the opinion of the court below, plaintiff’s counsel would seem to have fallen into the mistake of supposing that this might properly be accomplished by proceeding under section 104, ch. 66, Gen Stats., by which the allowance of amendments before or after judgment is authorized. But that section does not provide for cases (like this at bar,) where the facts which render the introduction of new parties necessary occur after the commencement of the action. Such cases are provided for by section 36 of the same chapter; Hernfayer vs. Hernfayer, 6 How. Pr. Rep. 13 ; Beck vs. Stephens, 9 Id. 193. Section 36, which governs this case, enacts that, “ An action does not abate by the death * * 'f a party * * * if the cause-of action survives or ontinues. In case of the death * * of a party, the ourt on motion at any time within one year thereafter or fterward on a supplemental complaint, may allow the action o be continued by or against his representative or. successor ,n interest.”

Defendant Thomas O’Shaughnessy having died more than one year before any steps were taken to continue, a continuance, unless stipulated, could be properly allowed only upon supplemental complaint, in analogy to the proceeding by bill of revivor under the old chancery practice. Taylor vs. Taylor, 43 N. Y. 585 ; Matter of Burnsdoff vs. Lord, 41 Barbour, 211 ; Roach vs. La Farge, 43 Barbour, 616.

In the case of a bill of revivor, the death of the party having left the action in a state of suspended animation, the question was whether it should be reanimated or revived. The purpose of the proceeding by bill of revivor, which was in the nature of a subsidiary or collateral action, was to try and determine this question. Before the original action could properly proceed against the persons sought to be brought in, an order to revive was necessary. Until such order, the action was not revived, (unless by waiver,) or in other words, the persons sought to be brought in did not become parties to the action. Day vs. Potter, 9 Paige, 645 ; Requa vs. Holmes, 16 N. Y. 196; 26 N. Y. 348 ; Matter of Barnsdoff vs. Lord, supra; Taylor vs. Taylor, supra; 2 Barb. Ch. Pr. 49; 2 Daniels Ch. Pr. (3d Am. Ed.,) 1587 ; 3 Id. 2086. Not being parties, and there being no one before the court to represent them, they were not bound by the judgment or other proceedings in the action. Requa vs. Holmes, supra.

So under our present practice, the continuance which corres-l ponds to the revivor, is to be allowed on supplemental complaint. This, like any other complaint, is the first pleadingl in an action, and in this instance in an action collateral andl subsidiary to the original action, the object in.view being tol try and determine the question whether the original actionl shall be revived, or, as we now say, continued. The actior is not to be continued before or at the time of filing the sup-1 plemental complaint, (as in the case at bar,) but upon a hear-l ing after opportunity has been offered to the parties sought to be brought in to appear and resist the continuance. The presentation or filing of the supplemental complaint, does not authorize, adjudge or effect the continuance of the action. Until after proper notice to the persons sought to be made parties, the question of continuance is judicially determined, and the continuance allowed, the original action is not continued, and the persons sought to be brought in, are not made parties thereto. And, for reasons before given, they are not bound by the judgment or other proceedings in the action. See authorities, supra. The judgment is as to them a nullity— the court which assumed to render the same never having acquired jurisdiction over them.

In the case at bar no order allowing the continuance of the original action was made after the service of summons upon the personal representatives and heirs of the deceased, Thomas O’Shaughnessy. As such representatives and heirs did not in any manner waive such order of allowance, the judgment and other proceedings in the case were as to them absolute nullities. Being nullities, it was not necessary that application should be made to vacate and set them asi’de within one year after judgment, under the provisions of section 105, ch. 66, Gen. Stats. That section does not refer to judgments which are void as having been entered without authority, against parties not in court. The court has the right to purge its records of such judgments, notwithstanding the lapse of a longer time than that allowed for opening judgments on account of mere irregularities. Dederick’s Adm’rs vs. Richley, 19 Wend. 112 ; M. & M. Bk. vs. Boyd, 3 Denio, 257.

If laches could be alleged against a party making an application of this kind, we agree with the learned judge below that there is no laches here.

Plaintiff’s objection that defendants show no meritorious defense is disposed of by what is said in Mackubin Edgerton vs. Smith, 5 Minn. 372. These views determine the case and render it unnecessary for us to consider most of the positions taken in plaintiff’s brief.

The order appealed from is affirmed.'