158 P. 268 | Or. | 1916
delivered the opinion of the court.
The quitclaim deed made on March 19, 1914, to Arthur L. Pressy by Florence C. Roberts, George Rhett Walker and Anne Walker, £ias heirs'at law of Johnson S. Walker, deceased,” may he considered along with the decree which was rendered on the same day against Florence Raymond, George S. Raymond, Rhett G. Walker and Anne Walker. While there is a dissimilarity between the names, excepting that of Anne Walker, found in the deed and those appearing in the decree, still if we assume that the persons who signed the deed are all included in the decree, then it will follow that if the decree is valid, the deed conveyed nothing, but if the decree is ineffective, the deed transferred the land: Jennings v. Kiernan, 35 Or. 349 358 (55 Pac. 443, 56 Pac. 72). It sufficiently appears that the signers of the deed are the heirs at law of J. S. Walker, and for the purposes of this discussion we shall assume that they are also among the defendants mentioned in the decree. In passing, hut without deciding its effect, we call attention to the fact that the complaint upon which the decree was rendered only
Section 38, L. O. L., made applicable to suits by Section 395, L. O. L., provides that no action shall abate by the death of a party if the cause of action survive or continue; and, in case of the death .of a party, the
"When the complaint was filed it named J. S. "Walker as the sole defendant, but he had died several months before the filing of the complaint, and consequently there was in reality no defendant at all. The very existence of a cause of suit implies that there is some competent person to be sued, and for that reason a suit cannot be maintained if a defendant is lacking: 1 C. J., p. 982, § 84; Fruitt v. Anderson, 12 Ill. App. 421; In re Hurst Home Ins. Co., 23 Ky. Law Rep. 940 (64 S. W. 512); Green v. McMurtry, 20 Kan. 189. There was no existing defendant at the time the complaint was filed, and therefore there was no action to abate or to continue or to which Section 38 could be applied: Crowdus Admr. v. Harrison, 9 Ky. Law Rep. 58. A judgment against J. S. Walker would have been a nullity (Hurst v. Fisher, 1 Watts & S. (Pa.) 438; Humphreys v. Irvine, 14 Miss. (6 Smedes & M.) 205; Service Lumber Co. v. Sumpter Valley Ry. Co., post, p. 32 (152 Pac. 262, 265); 1 C. J., p. 136), and the complaint upon which judgment was based would be as much of a nullity as the judgment itself. Since there was no action, there was nothing to amend or continue: Brooks v. Boston & Northern Street Ry., 211 Mass. 277 (97 N. E. 760); Ex parte Collins, 49 Ala. 69; Proprietors