Fordson Coal Co. v. Jackson

PER CURIAM.

This is an action at law , to try title to real estate. It was brought April 24,1909, by George V. Turner, who alleged that he was the owner and entitled to immediate possession of a tract of land upon which defendant Jackson had entered and detained the possession. Defendant answered, denying that plaintiff was the owner or entitled to possession of the land. He also interposed several affirmative defenses, upon which issue was joined. The first trial resulted in a judgment in favor of the plaintiff, which was set aside. On the retrial judgment was rendered for defendant, on December 1, 1923, to review which this writ is brought.

Defendant has asked a dismissal of the writ on the ground that the Fordson Coal Company was improperly substituted as plaintiff for Turner more than a year after his death. Counsel rely on section 509 of the Civil Code of Kentucky, which provides that an order to revive an action in the name of a representative or a successor of a plaintiff shall not he made without the consent of the defendant after the expiration of one year from the time the order might have been first made. Turner conveyed his interest in the land April 13,1910, to the pred - oeossor of the Fordson Coal Company. Ho died in September, 1922, and the order reviving the action and substituting the Ford-son Coal Company as plaintiff was not made until May 24, 1924. Under section 20 of the Kentucky Code of Practice the coal company had the right, after the assignment, to prosecute the action in Tumor’s name during his life, or to be substituted for him as plaintiff. It was under this permissible state procedure (Gerling v. B. & O. R. Co., 151 U. S. 673, 14 S. Ct. 533, 38 L. Ed. 311) that Turner was continued as the nominal plaintiff, although the coal company was the real party in interest.

Turner was dead when the cause was tried and the judgment rendered. Upon his death the action was suspended temporarily. When the interest of the sole plaintiff has been transferred pending the litigation, he must still be in esse after the transfer in order to permit the proceedings to. continue in his name. La Pointe v. O’Malley, 47 Wis. 332, 2 N. W. 632, and authorities cited. It was not necessary to have the action revived after Turner’s death. The order of substitution might have been made at any time under section 20 of the Code, without regard to section 509; but no valid proceedings could be bad on the merits until such an order was entered. The ease stands as if no judgment had been entered. The coal company has been substituted as plaintiff by the order of May 24th, but the writ of error must be dismissed, without costs, because the judgment it seeks to review is void.

Upon this reeord, the ease stands in the court below undisposed of.