Hopkins v. Hopkins' Adm'r , 91 Ky. 310 ( 1891 )

CHIEF JUSTICE HOLT

delivered the opinion or the court.

The judgment in this case was rendered on February 10, 1890. It was in favor of W. W. Hopkins, who was a defendant. He died September 5, 1890. No appeal was asked or granted in the lower court, and at the time of his death there was no action pending either in this or the lower court.

His administrator was appointed on December 5, 1890, and the appellants, who were plaintiffs below, sued out an appeal in this court on December 9, 1890, making the administrator an appellee.

These facts are properly shown by the record now before us. The administrator now moves to dismiss the appeal upon the ground that there has never been any revivor of the judgment either in this or the lower court. He insists that the death of Hopkins suspended all further proceedings until a revivor of the judgment. There is no specific direction in our Civil Code as to how an appeal shall be taken under such a state of facts. Section 767 provides that the provisions of title eleven shall, so far as applicable, regulate cases in the Court of Appeals; but that title relates exclusively to the revivor of actions. This is shown not only by the provisions of its sections, but they are entitled “Revivor of Actions,” and no other provision upon the subject refers to this court.

It is manifest this court could make no order reviving the judgment of the lower court, and at the death of the party there was no appeal pending here to revive. Chapter 4, title 9, of the Civil Code, provides for the revivor of judgments for the purpose of enforcement.

It is, however, the unsuccessful party that has taken this appeal, and if he cannot do it in' the manner now attempted, where his adversary has died before he has done so, and subsequent to the rendition of the judgment, then he must revive a judgment against himself, and if upon the state of case now before us he must do so, then if the successful party dies within a very few days before the end of the two years within which an appeal may be taken, and when there is not time to revive the judgment and then appeal, then the party is remediless; and if it could be- properly said there must be a revivor of the action, then there is the greater likelihood of it, because by section 507, of title eleven, there can be no revivor of an action against a personal representative within six months after the qualification of the first personal representative, and the time for an appeal might expire before the party "desiring it could by law put himself in a position to take it; but as already said, there is really no pending action, and hence there can be no revivor in either court of an action.

The cases of Williams, Receiver, &c., v. Thompson, &c., 80 Ky., 327, and Thomson’s Adm’r v. Williams, Receiver, 86 Ky., 16, are not applicable in this case, as there the party died while the action was pending in the lower court. It seems to us, in a case like this one, all the party desiring to appeal need do to perfect his appeal when taken in this court is to make the personal representative a party-appellee, and by-proper process bring' him before the court. He is a necessary and proper party to the appeal. He represents' the estate of the party who obtained the judgment ; and section 734 of the Civil Code provides that an appeal shall be granted as a matter of right against a party or privy, either by the court rendering the judgment at the term when it is rendered, or thereafter by the clerk of this court. If such course be taken, it certainly accomplishes all that any order reviving the judgment would if made in the lower court. No one is prejudiced, and the estate of the decedent is properly represented upon the appeal.

In the absence of an express statutory provision regulating the mode of proceeding in a case like this one, we think all has been done that is necessary, and that the proper mode of taking the appeal has been pursued. This view is, to some extent, sustained by what, was said in the case of Spalding, Adm’r, &c., v. Wathen, 7 Bush, 659, and the motion to dismiss the appeal is overruled.