Daily capital journal. (Salem, Oregon) 1903-1919, 1911-08-11

death revoked the authority of coun-
sci to appear and represent her on
her estate in the circuit court. The
decree of the circuit court attempted
to take these rights away and fur
ther to give a practical Judgment
against her for costs. While many
courts, and perhaps a majority, have
held that such judgment is voida-
BILE and not void, their reasoning
does not convince us that judg-
ment against person not in exist
ence is anything other than wholly
void, or that 1t can possibly bind any
one. 1t may we'll be granted that,
where a cause has been argued and
submitted and the decision is in the
breast of the judge and nothing re-
mains but the ministerial act of
causing it to be recorded, this func-
tion may be performed nunc pro
tune after the death Of a party; or
where default has been taken and
before entry of judgment the death
of a party occurs, the entry Of judg-
ment, which is mere ministerial
act of the clerk, may be proper and
regular but that, where death oc-
ours before hearing upon the mer-
its, the court may pass judgment
upon the rights of a decedent and
deprive him or his unrepresented es-
tate of valuable property, is propo
sition so illogical and unjust that
we cannot assent to it, even though
decisions parroted down from one
court to another, with hardly a pre-
tense of reasoning to support them,
may preponderate in number over
those holding the contrary doctrine.
At common law suit was abated
by the death of party: Mod. 1908;
Saund. 70 M. This rule is relaxed
by Sec. 3S L. o. l.. which provides
that the action shall not abate by the
death of a party, If the cause CT ac-
ton continue or survive, and that the
court, at any time within Que year
thereafter, on motion, may allow the
action to be continued against his
personal representatives or success
ors in interest. The effect Of this
section is to suspend the suit until
such substitution is made Mcbride
V. N. P. r. r. Co., 10 Or. "a. It Is
conceived that such. suspension has
the same temporary effect on the
rights of the parties as though the
suit were actually abated; that nei-
ther party can move in the case I'm
til a substitution Is ordered; and
: that during the interval between the
death of the party and substitution
of his legal representatives, the dis
abilities of either party remain the
same as at common law.
Commenting upon an act similar
in terms to that in force in this
state, the supreme court of Illinois
say: an the nature of things, the
deceased defendant cannot plead in
abatement, or otherwise interpose
the fact of his own death, and his le-
! gal representatives, until brought
into court by the plaintiff as con-
templated by the statute, are not
supposed to be present, or to .:now
anything about the pendelcy of, the
suit, and to hold a judgment OBJ
tanned under such circumstances
binding upon them, would seem not
only inconsistent with we'll settled
principles, but would probably lead
| " IuC VI 6lSdJ
We are, therefore, clearly of opinion
that such judgments are, as already
stated, absolutely void" Life Asso-
citation Of America v. Fassett, 102
Ill. 315, 1928.
Among other cases holding to the
same effect may be cited: Tarleton
v. Cox, As Miss. 43O; New Orleans &
C. R. Co. v. Bosworth, 8 La. Ann. 80;
McGreery " Everding, A Cal. 284;
Lynch v. Tunnel, Harrington 284;
Meyer v. Hearst, rs Ala. 800; Guyer
". Guyer, 6 Houston (Del.) 430; Wells
v. Aaron, rs Miss 1873; Kager v.
Vickery, 81 Kan. 342. Many other
cases might be cited to the same ef-
feet and quite as many, perhaps
more, to the contrary, but from a
consideration Of the rule as II ex-
listed at common law, and giving our
statute a fair and reasonable con-
struction, we do not believe that the
common law rule has been so far
abrogated as to permit a trial and
decree upon the merits as against a
dead person and that such decree is
an absolute nullity.
/ We do not understand that deci-
-,sions Of this court hold the contrary.
In Mitchell V. Schoonover, 16 Or.
212, a defendant duly served with
summons, appeared and demurred to
: the n0mnlainf Tho darnurrar ,.,oe