Fox v. Hopkinson ( 1897 )

Per Curiam.

We are of the opinion that the suit must be held to have aba,ted by the death of the defendant between the date of the decision and the date of the entry of judgment, and before the expiration of the time within which a jury trial must be claimed. When the date of the entry of judgment arrived, the defendant being dead, there was no one against whom j udgment could -be rendered ; and if the suit had been continued to await the appointment of an administrator, such administrator upon being • summoned in could not have claimed a jury trial, because the time for claiming such 'trial would have elapsed. We think the true view to be taken is that the suit abated by the defendant’s. death, as stated, and that the claim must be presented to the administrator.

Exception sustained, and case remitted to the District Court of the Eighth Judicial District.