63 Neb. 424 | Neb. | 1902
Preston Reeves recovered a judgment in the district court against William Kaelber and Harvey Link in the sum of $933.50, besides costs. On May 21, 1901, Link filed the record in this court, and a petition in error to reverse said judgment, making Reeves and Kaelber defendants in error. A summons in error Avas issued on the same day, Avhich Avas served upon B. N. Robertson, the attorney of record in the cause in the court below for said Reeves. On the day this petition in error was filed, and the summons in error issued, but before the service thereof, Preston Reeves died; and subsequently the action was revived in this court
A conditional order of revivor was issued, in pursuance of section 459 of the Code of Civil Procedure, which was duly served upon the administrator; and, no sufficient, cause being shown to the contrary, the court ordered the action to stand revived in the name of the administrator of the estáte of the decedent, in accordance with section 461 of said Code. The issuance and service of summons in error upon the administrator were wholly unnecessary. The service of thé conditional order of revivor was sufficient to bring the administrator into court, since said order was served within one year from the time the revivor could have been first made. Code of Civil Procedure, sec. 466.
Of course, there could be no review, unless the court had acquired jurisdiction of the cause by reason of the service of the summons in error upon Mr. Robertson. It is argued that service of process upon him was of no validity, inasmuch as Preston Reeves died the day the cause was docketed in this court and the summons in error issued, and prior to the time service was made upon Robertson. Without doubt, the relation of attorney and client ceased upon the death of Mr. Reeves; and, had the statute required a summons in error to be served upon the defendant in error or his attorney, then the service upon Mr. Robertson would be of no validity. But the statute does not so provide. Section 584 of the Code of Civil Procedure declares: “The proceedings to obtain such reversal, vacation, or modification, shall be by petition, entitled ‘petition in error,’ filed in a court having power to make such reversal, vacation, or modification, setting forth the errors complained of, and thereupon a summons shall issue and be served, or publication made, as in the commencement of an action. A service on the attorney of record in the original case shall be
The objection to jurisdiction is overruled.
Objections overruled.