Lyons v. Roach

72 Cal. 85 | Cal. | 1887

The Court.

—Motion to dismiss appeal on clerk’s certificate.

When the notice of this motion was served, and the motion brought to a hearing, the plaintiff in the action (Denis Lyons), when the judgment appealed from was entered, and the notice of appeal is claimed to have been served and filed, was dead, having departed this life long prior to the time first above mentioned. This appears by affidavits used on the motion, and is a sufficient suggestion of his death in this court. On such suggestion being made, this court has no authority to proceed further in the cause until his personal representatives have .been substituted as parties in this court; and until such substitution has been made, no motion can be made to dismiss the appeal. A substitution ' of the representatives of the deceased plaintiff in the court below, made long after the judgment and the taking of the appeal to this court, cannot be noticed here. The parties, under the condition of matters above stated, must be substituted here before any motion can be made or heard, or any available notice thereof given.

The motion must be denied. As we hold that there is no motion before us, it is unnecessary to say that such denial is without prejudice to a motion when the proper persons have been made parties in this court.

Motion denied.