Burns's v. Stanton ( 1852 )

Mr. Justice Fisher

delivered the opinion of the court.

This cause is before us on a motion to dismiss the appeal, on the ground that the death of the appellant was suggested at the January term, 1850, of this court; and no steps have been taken to revive it in the name of his representatives. The motion is opposed on the ground that, since the suggestion was made, the cause has not been regularly reached on the docket, and that, therefore, there has been no laches in its prosecution.

We are of opinion, that this is a sufficient reason for overruling the motion. The proper parties may be made when the cause shall be reached on the docket; and if so, no delay or injury will accrue to the adverse party. An appeal or writ of error does not abate by the death of the party; and the court may proceed without revivor to examine the errors assigned, but not to render judgment.

Motion overruled.