i practicesubstitiu?on of administrator. — I. Appellant claims there was error in overruling his motion for continuance. It is claimed that, upon the substitution of the administrator, the defendant was entitled to time to appear and defend as a new act¿on had been commenced. In case of the death of a party to an action, section 2527 of the Code provides that “the court, on motion, may allow the action to be continued by or against the legal representatives or successors in interest of the deceased. Such action shall be deemed a continuing one, and to have accrued to such representative or successor at the same time it did to the deceased if he had survived. If such is continued against the legal representative of the defendant, a notice shall be served on him as provided for service of original notices.” It is a necessary implication from the requirement that notice shall be served upon the legal representative of the defendant, when the cause is continued against him, that no notice is necessary when the cause is continued in favor of the legal representative of the plaintiff. In such case, there being no *446change in the person of the defendant, it is his duty to look after'his interests, and to be vigilant in the preparation for trial. No reason is shown for continuance in this case except the recent substitution of plaintiff, and that defendant is not ready for trial. It does not appear that he exercised any diligence to procure testimony and prepare himself for trial. Upon the contrary, he seems to have regarded that all necessity for vigilance was removed by the death of the original plaintiff. The court, we think, did not err in overruling the motion for a continuance.
a. ad minisp5ntmrartaof special. II. The only remaining question in the ease is as to the right of the plaintiff to prosecute this action. The appellant insists that the clerk had no power at all, under the circumstances set up in the answer, to appoint an administrator, and that, in any event, he could appoint only a special administrator, and that a special administrator has no power to sue. The Code provides: “When from any cause general administration cannot be immediately granted, one or more special administrators may be appointed to collect and preserve the property of the deceased. They shall make and file an inventory of the property of the deceased in the same manner in all respects as is required of general executors or administrators, and shall preserve such property from injury. For this purpose they may do all needful acts, under the direction of the court, but shall take no steps in relation to the allowance of claims against the estate.” Sections 2357, 2359 and 2360. The answer shows that the will of Peter Carmody had not been proved. In the absence of direct review, by appeal or otherwise, of the action of the Circuit Court, it must be presumed that a proper occasion existed for- the appointment of a special administrator, and, in the absence of showing to the contrary, that the plaintiff, Masterson, was properly appointed such administrator.
*4473-_._. pending suit.*446III. The question remains as to the right of a special ad*447ministrator to prosecute this suit. The suit was pending at the date of his appointment. The only direct iim^ation placed upon the power of an administrator is that he shall take no steps in relation to the allowance of claims against the estate. It is his duty to collect and preserve the property of the deceased. The right to prosecute a suit is incident to the duty of collecting and preserving the property. Without this right the duty enjoined could not be fully and properly performed.
