Hinkle v. Ward , 133 Kan. 516 ( 1931 )

Johnston, C. J.

(dissenting): I am unable to concur in the first proposition decided, viz., the holding that an appeal may be taken from a judgment by the service of a notice upon the attorney of record of the defendant who had died more than six weeks before service was made upon the attorney. Very briefly stated, my dissent is based upon the ground that the only interest or connection the attorney had with the case was in his capacity as attorney for the defendant. When defendant died his relations to him and to the case terminated. Thereafter he had no client and no power to represent any party in the case. His capacity as an attorney ended with the death of the defendant. He could not act for heirs or devisees unless he was employed by them for the purppse of obtaining a revivor. Plis acceptance of service of a notice of appeal was of no more force than would .have been the acceptance of any stranger to the case. Until there is a revivor no order in the case can be made, nor can any step be taken in the case. In the early case of State v. McArthur, supra, it was held that when a judgment becomes dormant any step or proceeding thereafter taken before a revivor is accomplished is void and should be set aside. The authorities cited in the prevailing opinion tend to show the service was ineffectual to the obtaining of an appeal. The statute provides that the notice of an appeal must be served upon adverse parties or their attorneys of record. It is not to be served on an attorney of record as a distinct and independent functionary, but upon one who is in fact an attorney of the adverse party at the time of service. In my view Fleming was not attorney of defendant by the record or in any other legal capacity after the death of his former client. As the case stood when that service was made there was no defendant in the case, and Fleming cannot be regarded as the attorney of record of the dead defendant.