On the fourteenth day of June, 1886, the plaintiff commenced this action against Thomas P. Baird and M. B. Baird, to recover eighteen hundred dollars and interest, due on a promissory note, and on the same day sued out a writ of attachment against the property of the defendants. Tho summons as well as the attachment were served in Union County, Oregon, on the next day after they were issued. On the twenty-seventh day of June, 1886, the defendants appeared by tbeir attorney in fact, "Willis Skiff, and filed a demurrer to the complaint, which was on the first day of October, it being the October term of said court, 1886, overruled. On the sixth day of October, 1886, the plaintiff took judgment against the defendants for want of an answer. On the twenty-sixth day of November, 1886, Nelson Schoonover filed a petition entitled in said action, reciting the above facts; and further, that on the sixth day of October, 1886, M. B. Baird died at Union County, Oregon, and after his death plaintiff took judgment against said deceased, and an order for the sale of the attached property which belonged to said deceased. That the petitioner was on the 13th of October, 1886, duly appointed administrator of the estate of M. B. Baird, deceased, by the County Court of Union County, Oregon.
The prayer in substance is for an order allowing petitioner to appear in said action as the duly qualified administrator and legal representative of said deceased, and that further proceedings in said action be taken against the petitioner as such legal representative. Thereafter, on the tenth day of December, 1886, the plaintiff by his attorneys filed a motion to strike Schoonover’s petition from the files, which motion was denied on the fourteenth day of December, 1886. Afterwards the plaintiff filed a motion to strike paragraph five from Schoonover’s petition,
The plaintiff filed a motion to strike out these affidavits; the same was overruled, and Nelson Schoonover as administrator was allowed ten days in which to file an amended motion and affidavits. Within the time allowed an amended motion and some additional affidavits were filed. Afterwards, on the twenty-third day of July, 1887, both motions were denied by the court, from which last-named order, overruling his motion to vacate the judgment as to M. B. Baird, deceased, Nelson Schoonover has appealed, and assigns for error the action of the court in overruling his said motion. Schoonover’s amended petition to vacate said judgment shows that said M. B. Baird was insolvent at the time of his death, and that the attachment was levied wholly upon the real property of said M. B. Baird, and not upon any of the property of Thomas P. Baird. That fully three thousand dollars of M. B. Baird’s debts were due to sureties of said- M. B. Baird, who had made advances for him, etc..
The application of Schoonover to vacate the judgment seems to be founded upon two theories: (1) That the death of M. B. Baird dissolved the attachment; and (2) that the judgment is
It may be doubted whether or not the order made in this case refusing to vacate this judgment is an appealable order. “A final order affecting a substantial right, and made in a proceeding after judgment or decree for the purpose of being reviewed, shall be deemed a judgment or decree.” (Hill’s Code, § 535.) It is not perceived how this order affected a substantial right. No defense to the action was offered or proposed, nor did the appellant offer an answer of any kind. But this question was not suggested at the argument, and the decision will not be placed on this ground.
1. It is conceded that there is no provision of the Code which declares that an attachment will be dissolved by the death of either party. If such a result follows death, it must be gathered inferentially from some provision of the Code, because it is nowhere expressed; but it will be most convenient to see first what effect the death of a party has upon a pending action. Section 38 of Hill’s Code declares; “No action shall abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death, marriage, or other disability of a party, the court may, at any time within one year thereafter, allow the action to be continued by or against his personal representatives or successor in interest.” And by section 144 it is provided that “the plaintiff may at the time of issuing the summons, or any time afterwards, have the property of the defendant attached, as security for the satisfaction of any judgment that may be recovered. .... From the date of the attachment until it be discharged or the writ executed, the plaintiff as against third persons, shall be deemed a purchaser in good faith for a valuable consideration of the property, real and personal, attached. . . . .”
If effect be given to all of these provisions of the Code, the attachment is not dissolved by death. If a party die, the adverse party may within one year thereafter cause the action to be continued by or against the personal representatives of such
In passing on the question whether the attachment held the property or not, the court said: “The attachment remains in force, notwithstanding the death of the defendant; the revival of the action by the appearance of the executor enables the plaintiff to obtain his judgment. Payment of such judgment out of the attached property can only be obtained through an execution by which the attached property is to be sold.” So in Kennedy v. Raguet, 1 Bay, 484, an attachment was issued and certain persons were garnished. The garnishees made default and judgment went against them. About the time or immediately after the issuing execution, it was discovered that Baguet, the principal debtor, had died at Bordeaux before the signing of judgment against the garnishees. They therefore moved to set aside the judgment and execution against them, for the reason that the death of the defendant before judgment abated the action aud dissolved the attachment. But their motion was disallowed, and they were held liable on the judgment. So, also, in Holman v. Fisher, 49 Miss. 472, it was held in effect that if
2. But it is argued that this judgment is void, and for that reason it ought to have been set aside. But the authorities do not sustain this position. It must be remembered that the judgment itself is not before us for the reason the appellant took no appeal from it. We are not, therefore, required or permitted to say whether it is reversible for error or not. The only necessary point for us to consider on this branch of the case is, whether or not the court below erred in overruling the appellant’s motion for the reason stated therein. The decided weight of authority seems to be to the effect that if a court of general jurisdiction, or a court which has acquired full jurisdiction over the cause, and over the parties, renders a judgment for or against a party after the death of such party, the judgment is not for that reason void. It may be erroneous, but until reversed by some appropriate proceeding it is valid.
In Reid v. Holmes, 1 7 Mass. 326, the question came before the Supreme Court of that State, and it was held the judgment was not void. The court said: “ If the fact agreed in the case stated of the death of the defendant after the default and before the judgment, is competent to be considered, it does not show that the judgment is absolutely void. The court at the time of bringing the former action had jurisdiction of the subject-matter and of the parties, and might after the death of the defendant have rendered judgment against him as of a previous term (Tapley v. Martin, 116 Mass. 275; Kelley v. Riley, 106 Mass. 339, 341; 8 Am. Rep. 336; Tapley v. Goodsell, 122 Mass. 176-181); or the judgment actually entered might, on motion of the plaintiff, have been amended so as to stand as a judgment mine pro tuno, or have been vacated and the adminis
3. But under the state of this record at the time M. B. Baird is said to have died, it was the duty of the court to see that the plaintiff was not prejudiced by its delay in entering judgment. The court overruled the defendant’s demurrer to the plaintiff’s complaint on the first day of the October term. They did not apply for leave to answer or plead further. At the time the demurrer was overruled the plaintiff was then entitled to a judgment according to the prayer of his complaint. His cause of action stood admitted upon the record, and it was the duty of the court to enter judgment against the defendant according to the facts as they were alleged in the complaint. If while the cause is in this condition the defendant dies, the plaintiff is not to lose the fruits of his litigation, and if necessary, it is the duty of the court to enter judgment nunc pro tunc as of the previous term, or under our practice an earlier day in that term. This is the common-law rule of practice, and the Code has not changed it.
In Blaisdell v. Harris, 52 N. H. 191, after verdict for the plaintiff, the case was transferred to the law term for the consideration of the full bench, upon exceptions taken by the defendant. While the cause was thus pending in the law term the defendant died. Afterwards the defendant’s exceptions being overruled, it was held that the plaintiff should have judgment as of the previous term when the verdict was rendered. In Tapley v. Martin, 116 Mass. 275, it was held that if after verdict for the plaintiff the defendant dies, the court has power to pass upon the exceptions alleged by him, and if justice requires, to enter
Counsel for appellant have not cited a single authority from any book, holding that for the purpose of defeating a judgmeut of a court of general jurisdiction the legal representative of a deceased defendant may allege that on the same day and at a previous hour before the rendition of the judgment his intestate had died, and my own researches have failed to find any authority for that position. Our views on the merits being adverse to the defendant, we have not thought it necessary to consider or decide the technical objections urged as to the form in which the questions are presented.
There being no error prejudicial to the rights of the appellant, the judgment appealed from must be affirmed.