Owings v. Owings , 3 G. & J. 1 ( 1830 )

Buchanan, Ch. J.,

delivered the opinion of the court.

This case is brought before us, on a motion to dismiss the appeal.

The decree of the Chancellor, which it is sought to have reviewed in this court, was passed on the 20th February, 1828, in favor of the defendant. From that decree, an appeal was prayed by the solicitor, for Colegate D. Owings, (who had been complainant in Chancery,) on the 14th of March, 1828, which was allowed, and the record was brought up to the June term, 1828, when there was an appearance of counsel for Charlotte C. D. Owings, the defendant. At the same term, a motion to dismiss the appeal, appears to have been entered. On the 18th of November, 1828, an affidavit of the death of Colegate D. Owings, was. filed, in which it is stated, that she died on the 1st March, 1828, before the appeal was prayed, and at the June term, 1829, the heirs at law of Colegate D. Owings, appeared in the case to prosecute the appeal.

The motion to dismiss the appeal is founded on the fact, supported by affidavit, that the nominal appellant, Colegate D. Owings, was dead at the time the appeal was prayed, and that the record was improperly brought up; and the question is, whether the objection to the case being entertained, has been removed, either by the appearance of counsel for the defendant, or of the heirs at law of Colegate D. Owings ?

It has been decided in Roche vs. Johnson and wife, by this court sitting on the Eastern Shore, at June term, 1806, that cases in this court are not within the provisions of the act of 1785, ch. 80, sec. 1. But if it was otherwise, and that act could be held to relate to suits in this court, this is not a case to which it could apply. That act provides against an action abating by the death of either party after suit brought, and authorises the appearance of those interested, but makes no provision for the case of a suit brought in the name of a dead person,.

The acts of 1806, ch. 00, sec. 11, and 1815, ch. 149, sec. 5, 6, do relate to cases in the Court of Appeals, but neither of them embrace a case such as this. The former of those acts only providing, that if either of the parties to a cause in the Court of Appeals, shall die, after the cause has been put under rule argument, it shall not therefore abate, but that the court shall give judgment, as if such deceased party were alive. And the latter providing for the case of the death of an appellant, or plaintiff in error, after an appeal has been made, or writ of error brought, and directing that no appeal or writ of error shall abate, by the death of either party, if the heir, See. of the deceased party, shall at the first or second term, .succeeding the death, make the necessary suggestion, and appear to the appeal, or writ of error for the purpose of prosecuting or defending it j thus clearly not applying to this ease, in which the appeal was made in the name of a person, not in esse at the time. But if, by any possible construction, it could be held to embrace the case of an appeal made in the name of a dead person, it would not have the effect to save this case; the provision being, that no appeal, or writ of error, shall abate by the death of either party, if the heir, &c. of the deceased party, shall at the first or second term succeeding the death, make the necessary suggestion, and appear, &c. so that the necessary corollary is, that the appeal or writ of error, will in such case abate, if the heir, &c, of the deceased party shall not at the first or second term succeeding the death, make the necessary suggestion, and appear, &c. And not only was there no suggestion of the death in this case, by the heir of the deceased, but the appearance of the heirs was not until the third term after the death. So that if there had been an appeal properly depending in this court, it would regularly, have abated. But there was no appeal properly made, or depending here, and the mere appearance of the heirs of Colegate D. Owings, does not stand in the way of the motion to dismiss; their appearance being without authority, and the case standing, as if no such appearance had been entered. Nor has the objection been waived or obviated by the appearance of counsel for Charlotte C. D. Owings, which may have been only for the purpose of making the motion to dismiss, and could not have the effect, to render the mere sending up the record, and docketing the case in the name of one who was dead, a good and available appeal.

It was not .a mere irregularity, but a complete and radical defect.

APPEAL DISMISSED.