3 S.D. 302 | S.D. | 1892
On the 30 th day of November, 1889, in the circuit court in and for Kingsbury county, judgment was rendered in this action against defendant Snedigar and defendant Whitney, as the. administrator of the estate of Tuttle, deceased, upon a note made by said Snedigar and said Tuttle, deceased. On the 3d day of December, 1891, WTiitney, as such administrator, caused
The motion to dismiss must be allowed. In Dalbkermeyer v. Scholtes, (S. D.) 52 N. W. Rep. 261, we dismissed an appeal upon a showing that the appeal was taken and prosecuted without authority from the appellant. In this case the real party in interest —the real appellant — may be the estate of the deceased Tuttle, but the party who actually brings and prosecutes the appeal is shown to have no authority to represent such estate. Suppose we retain this case, and, upon hearing, render judgment against the appellant; who is bound? Not the estate of Tuttle, for we know, and it is admitted, that Whitney, the nominal appellant who brought the appeal, has no authority to appear for the estate, and that we get no jurisdiction over it. Not "Whitney himself, for his notice informs us at the outset that he appeals only in a representative capacity. As administrator, "Whitney was dead when, and long before, the appeal was taken. An appeal taken in the name of a dead person gives the appellate court no jurisdiction. Taylor v. Elliott, 52 Ind. 588; Branham v. Johnson, 62 Ind. 259; Sanchez v. Roach, 5 Cal. 248; Judson v. Love, 35 Cal. 463; Coffin v. Eddington, (Idaho,) 23 Pac. Rep. 80; Tracy v. Roberts, 59 Iowa, 624.
It is claimed and argued by appellant’s counsel that the discharge of Whitney as administrator, and the appointment of his successor, operated as a transfer of the cause of action from the old to the new administrator, but that, under section 4881, Comp.