Judson v. Love , 35 Cal. 463 ( 1868 )

By the Court, Sawyer, C. J.:

A motion is made to dismiss the appeal as to the defendant Love, based, firstly, upon exceptions to the transcript; and, secondly, upon affidavits filed, showing that defendant, Love, died on the 5th of March, 1866, after the rendition of the verdict in the Court below, and before any notice of inten-. tion to move for a new trial was given, on the ground that all subsequent proceedings on motion for new trial, and the attempt to appeal, are void and ineffectual for any purpose as to said defendant, Love, and his successors in interest, for want of any proper party to the suit, or of any person upon whom a valid service of papers could be made. It is claimed by appellant, that the defects in the record have been supplied, and, for the purposes of our decision, it may be so assumed. Conceding the record to be sufficient upon its face, it shows that defendant, Harlow S. Love, was represented in the case by his attorney, John Lord Love; that on the 17th of March, 1866, notice of intention to move for a new trial was served on said attorney, John Lord Love; that the necessary papers were prepared, and motion for new trial made and denied on the 13th of April, 1867; and that on the 25th day of April, 1867, a notice of appeal from the judgment and order denying new trial was served on John Lord Love. It nowhere appears in the transcript, whether said John Lord Love took any part in the proceedings in the Court below, subsequent to the service on him of the notice of motion for new trial. It does not appear that the death of Harlow S. Love was ever suggested in the Court below, or that his representatives have ever been in any way made parties to the action. The affidavit of said John Lord Love, filed in this Court before the calling of the case for argument, as the basis, in part, of the motion, shows that defendant, Harlow S. Love, died on the 15th of March, 1866—two days before the service of notice of intention to move for a new trial.

It is clear that all these proceedings, except the entry of judgment on the verdict before rendered, had since the death of defendant., Harlow S. Love, on the 15th day of March, 1866, are irregular and void’ as to him and his successors in interest. There was from that time forth no party before the Court as to the interest of Love in the matter in controversy, and no one authorized to represent it. The power of attorney necessarily ceased with the death of the principal. Ho further proceedings could be had without bringing in the representatives of Love. The Practice Act authorizes a judgment to be entered upon the verdict, when a party dies after verdict and before judgment, (Sec. 202,) but this is as far as it goes. Warren v. Eddy, 13 Abb. Pr. 30, is in point. Hotice of argument had been served on the attorney of defendant after the death of the latter. The Court say: “At the time of the service of the notice, J. W. Culver could not act for a dead man, and he had no authority to act for or represent the estate. The order of the general term for affirmance by default founded on such notice, was, therefore, irregular, inasmuch as it was made without notice to any one representing the estate of Daniel F. Eddy.” So in Sanchez v. Roach, 5 Cal. 248, the appeal was taken and perfected after the death of the appellant, and the appeal was dismissed on that ground. The Court say: “.The affidavit of the respondent’s counsel, which was not contradicted, shows that the appellant died on the same day that the judgment was rendered. There was then no authority for prosecuting the cause in the name of the deceased; but all proceedings ought to have been stayed until, by suggestion, his executor or administrator was made a party. Let the appeal be dismissed.” It can make no difference whether the deceased is the appellant, or moving party, or the respondent in the proceeding. His former attorney could not give a notice of motion for new trial or of appeal that would be effectual, for he has ceased to have any authority in the matter. If he has no authority to give such notice, he has none to receive one, or act upon it in the further stages of the proceedings, when it is received. He has become a stranger to the proceedings. It is insisted, however, that it appears from Love’s affidavit that John Lord Love is the executor of the will of defendant, and that the executor may lawfully perform almost every act which is incident to his office before the probate of the will and issuing of letters testamentary; that his interest is vested by virtue of the will, at the instant of the death of the testator. Suppose this be admitted, it does not follow, that the service of the notice of intention to move for a new trial or appeal on him is effectual. If he is an executor before the probate of the will, he is still not a party to the suit till he is made so in due form. He must he brought into the suit as a party before he can be affected by any proceedings in the suit. The death of Harlow S. Love has never been suggested, and John Lord Love has never been made a party to the suit. The action must be continued against the representative under section sixteen of the Practice Act, and he must be duly notified of the fact of his being made a party before he can be affected by notices or proceedings in the action. Till he is made a party to the suit as executor, he is as much a stranger to the proceedings as a party to be affected by it, as if he were not the executor of the will of deceased, and we have already seen that he has ceased to have any authority as attorney.

It is claimed, however, that we must take the transcript as we find it, and that we cannot inquire into the death of the defendant, unless that fact is disclosed in the record of the Court below. The record could not disclose the fact, unless it had appeared somewhere in the course of the proceedings. The death of defendant never was brought to the knowledge of the Court below. The appellant did not suggest the defendant’s death, or move to continue the action against his representatives. The plaintiff was the only party interested in bringing in the representative. The representative was not bound to thrust himself unbidden into the action. He was safe, for no valid proceeding could be taken by the appellant without him. The record below could not disclose the fact of defendant’s death, for it was no part of the proceedings in the case. Even if we were to proceed further on this appeal, and render judgment, it would be a nullity, whether we are informed of the decease of the defendant, judicially, or not. It would be useless, therefore, to entertain the appeal. But we are informed of the fact by the affidavit filed. It is regular and proper to suggest the death of a party in any Court, and at any stage of the proceedings. It has now been suggested, and it is our duty to stop, whether there is any motion to dismiss or not. It is said, however, that we cannot act upon the affidavit because the appellant was entitled to five days or more notice of the motion to dismiss, also, to a service of the affidavit of the moving party. This might have been a good objection to hearing the motion at all at the time it was made, or until notice should be given and service made. But no such objection was made at the time the motion was submitted. The motion was submitted on its merits, on briefs to be filed, and the objection of want of notice is now made in the briefs for the first time. The objection was waived by not taking it in time. The object of the notice is that the party may not be taken by surprise— that he may come with counter affidavits, or be otherwise prepared to meet it. There was evidently no surprise, and the motion was submitted on the merits. As in the case of Sanchez v. Roach, 5 Cal. 248, the affidavit of the death of defendant was not contradicted, and it appears that he died before the service of the notice of appeal, and that all of the proceedings since the verdict, except the entry of judgment in accordance with it, are ineffectual for any purpose as against defendant Love.

Let the appeal, as to Love, be dismissed.

Mr. Justice Rhodes expressed no opinion.