Fortune v. Gilbert

Mr. Justice Boggs

delivered the opinion of the court:

The defendant in error, in an action of debt in the superior court, recovered a judgment against plaintiffs in error and one Patrick O’Toole. The plaintiffs in error and O’Toole perfected an appeal to the Appellate Court. After the assignment of errors, but before the submission of the appeal for decision, the said O’Toole died. The Appellate Court was not advised of his death, and the cause was submitted to it for decision as though all of the parties were alive. The Appellate Court entered judgment affirming the judgment of the superior court as against the plaintiffs in error and said O’Toole, and about fourteen months thereafter the plaintiffs in error filed in the Appellate Court their suggestion of the death of the said O’Toole and moved the court to set aside the judgement entered in the cause. The court entertained the suggestion and motion and granted the motion. As appears by the record of.the Appellate Court, the plaintiffs in error and the defendant in error came again into court, and that court, to quote from the record, “diligently examined and inspected as well the record and proceedings as the matters and things therein assigned as for error, and being now sufficiently advised óf and concerning the premises, for that it appears to the court now here that neither in the Record and proceedings aforesaid nor in the rendition of the judgment aforesaid is there anything erroneous, vicious or defective and that in that record there is no error,” thereupon entered judgment affirming the judgment of the superior court as against the plaintiffs in error only.

If one of several appellants shall die, the remaining appellants may suggest the death of their co-appellant and proceed with the prosecution of the appeal. (2 Ency. of Pl. & Pr. 199; 2 Cyc. 771; Alexander v. Rea, 50 Ala. 64.) It was not incumbent on the appellee in the Appellate Court (defendant in error here) to take any steps toward bringing in the legal representatives or heirs of the said O’Toole as parties appellant in the Appellate Court. The appeal might, after the death of O’Toole, properly proceed in the Appellate Court as an appeal on the part of the plaintiffs in error, and so it appears to have proceeded to final judgment after the judgment against the plaintiffs in error and O’Toole had been vacated.

The only remaining question is whether the superior court erred in refusing to grant the motion entered by O’Toole and the plaintiffs in error Hickey and Fortune to strike the cause from the short-cause calendar, where the defendant in error had caused it to be placed for trial. The ground of the motion was, that the issues in the cause had not been formed when the notice and affidavit to place the cause on the short-cause calendar were filed. The issues as to the plaintiffs in error and O’Toole had been joined, but Catherine McGuire, one of the plaintiffs in error, who had been served with summons eight months before, had not pleaded to the declaration nor had formal default been entered against her. The notice and affidavit to place the cause on the short-cause calendar were filed November 23, 1899. On January 9, 1900, Catherine McGuire was defaulted, and on the 19th day of February, 1900, the cause was reached for trial on the regular call of the short-cause calendar. It was not until that day, within but four days of three months after the cause had been placed on that calendar, that the motion to strike it from the calendar was entered. The cause was at issue as to the plaintiffs in error who made the motion when the notice ánd' affidavit to place the cause on the short-cause calendar was filed, and the default against Mrs. McGuire, which placed the cause at issue as to all the parties, had been entered some forty-one days before the motion was entered to strike the cause from the short-cause calendar. Under the circumstances we think the superior court was justified in denying the motion, for the reason it was not offered until the day fixed for trial,—a period of nearly three months after the makers of the motion had been notified that the cause would be placed on the short-cause calendar. The objection was only technically good, and it was properly held not made in apt time.

The judgment of the Appellate Court must be and is affirmed. Judgment affirmed.