Blodget v. Blodget , 42 How. Pr. 19 ( 1871 )

Doolittle, J.

I must assume the defendant iii this action was dead when it was commenced.

The judgment, therefore, is void; but it is an apparent lien or cloud on the real estate situate in the county of Onondaga, left by him.

The defendant died intestate, and his real estate descended to his children among whom is this Mary J. Howe, on whose behalf the motion is made.

She moves the judgment be declared void, and be set aside, in order to release her real estate from the apparent incumbrance.

The notice of motion was served on the plaintiff s executors, who appear and contest the motion.

: Since the judgment was entered, the plaintiff has died testate, and his executors have qualified, and administrators have been appointed of the estate of the defendant.

The executors insist that this motion is premature; that it is a proceeding in the action in which judgment was obtained, and that no such proceeding can be taken, until the executors of the plaintiff are substituted for the plaintiff. It is .true such substitution is necessary before any proceeding can be taken in an action pending, where the plaintiff dies -before judgment.

After judgment the personal representatives of a deceased plaintiff may apply on motion, and obtain leave to issue an execution (Code, § 283, as amended in 1866, and % 284.)

This is not an attempt to proceed in an action, but it is a motion to set aside a security which the executors of the plaintiff, as such, own and fully represent, on the ground it Is void ,* and in case the security is set aside, no action remains to prosecute or defend.

This court has control of its own judgments, and has not unfrequently vacated them on motion of parties having an interest in a property, on which they are a cloud. ,

Judgment set aside.