Hayden v. Huff

• Decision Date: 10 July 1901
• Docket Number: 9,186
• Citation: 87 N.W. 184,62 Neb. 375
• Parties: KENT K. HAYDEN, APPELLANT, v. EDWARD T. HUFF ET AL., APPELLEES
• Court: Nebraska Supreme Court

87 N.W. 184

62 Neb. 375

KENT K. HAYDEN, APPELLANT, v. EDWARD T. HUFF ET AL., APPELLEES

No. 9,186

Supreme Court of Nebraska

July 10, 1901

APPEAL from the district court for Lancaster county. Heard below before HOLMES, J.

Application on rehearing being allowed, by administrator for order of revivor. Allowed.

Petition sustained.

Cobb & Harvey, for appellant.

Wolfenbarger & Williams, A. S. Tibbets, James E. Philpott and Lambertson & Hall, contra.

OPINION

HOLCOMB, J.

The present action is one in equity pending in this court on an appeal from a judgment rendered in the district court of Lancaster county in favor of the defendants, appellees in this court. The cause was submitted on its merits for a decision on the issues raised by the pleadings and the evidence, and an opinion handed down October 18, 1900 affirming the decree of the lower court. Hayden v Huff, 60 Neb. 625, 83 N.W. 920. A motion for a rehearing was in due time presented, which, on consideration, was sustained and a rehearing allowed.

At this stage of the proceedings, the appellee, Alice A. Minick, suggested the death of plaintiff and appellant, accompanied by a showing that his death occurred in July, 1898; that Minnie E. Hayden was, on the 15th day of August following, duly appointed administratrix of the estate of the deceased, and because no application had been made to have the action revived in the name of the administratrix for more than one year after her appointment, it was moved that the appeal be stricken from the docket. The motion was sustained and the action stricken from the docket. The administratrix having died in the meantime, Edwin T. Peters was duly appointed administrator de bonis non of the estate of the appellant, Kent K. Hayden, deceased, and appears in this action for the purpose of having it revived in his name as such administrator. The application is made by a supplemental petition in the nature of a bill of revivor. By the answer filed to the petition for revivor the issue presented is one of law only, and that is, whether, when more than a year has elapsed after the appointment of the administratrix of the estate of the deceased appellant, without any steps having been taken to have the action revived in her name, and after the action has been stricken from the docket on motion of the appellee, by the proceedings now resorted to for that purpose, a revivor may be rightfully ordered. The law governing the subject, in this state at least, appears to be somewhat obscured by doubt and diversity of opinion. More or less confusion on the part of the bench and bar has been the natural result thereof. There is no question in the present case as to the cause of action existing in favor of the deceased being one which under the law survives his death when the proper steps are taken to have the action revived in the name of the proper party as successor in interest. The question is not whether the cause of action survives, but by what method, and whether more than one, may the action be revived, which otherwise would abate by the death of the plaintiff and appellant.

Under the title, "Revivor of Actions," sections 456-470, of the Code of Civil Procedure, it is provided by section 459 that the revivor shall be by a conditional order that the action be revived in the names of the representatives or successor of the party who died, or whose powers ceased, and proceed in favor of or against them. By section 460 the conditional order may be made on the motion of the adverse party or the representatives or successor of the party who died. Sections 461 and 462 provide for the manner in which notice of the conditional order shall be served, unless the order is made by consent, in which case the action shall forthwith stand revived. In section 466 it is declared that an order to revive an action against the representatives or successor of a defendant shall not be made without the consent of such representatives or successor, unless in one year from the time it could have been first made; and in the following section (467), with reference to the death of a plaintiff, it is provided that the order may be made forthwith, but shall not be made without the consent of the defendant after the expiration of one year from the time the order might have been first made; but where the defendant shall also have died, or his powers ceased, the order of revivor on both sides may be made in the period limited in the last section. By section 468 it is provided that when it is made to appear to the court by affidavit that either party to an action has been dead for a period so long that the action can not be revived in the names of his representatives or successor without the consent of both parties, it shall order the action to be stricken from the docket.

From the foregoing, and other sections relating to the subject, the following is fairly deducible from our statutory enactment concerning the proceedings of a summary character by which an action may be ordered revived in the name of the proper party in interest, where the cause of action survives: (1.) By the consent of all parties in interest an order of revivor may be entered at any time. (2.) By a conditional order served on the opposite party or parties, if no cause is shown to the contrary, the order of revivor may be made at any time within one year from the time the order might have been first made. (3.) That if an action is not revived within one year from the time an order of revivor might have been first made, and this fact is made to appear by affidavit, it is made the duty of the court in which the action is pending to strike it from the docket. The provisions under consideration, no doubt, apply to all actions pending in this court, whether upon appeal or by proceedings in error, to the same extent and with equal force, as to actions before judgment, pending in the district courts of the state. If these statutory provisions for revivor were exclusive, the questions under consideration would require no further discussion, and our conclusion of necessity would be adverse to the application of the petitioner. That the summary method pointed out by the statute referred to is not exclusive has already been determined by the former adjudications of this court.

By section 45 of the Code it is provided that in case of the death or other disability of a party, where the cause of action survives, the court may allow the action to continue by or against his representative in interest. This section has been construed as giving the right to revive an action independent of the provision of the statute under the title of revivor heretofore referred to. In Rakes v. Brown, 34 Neb. 304, 51 N.W. 848, it is decided by the fourth paragraph of the syllabus that: "The mode provided by title 13 of Civil Code, for reviving actions by conditional order of revivor, is not exclusive. Section 45 of the Code confers authority upon the court to allow the action to be prosecuted by or against the representatives or successors in interest of a deceased party. For this purpose supplemental pleadings may be filed and summons served as in the commencement of an action. Fox v. Abbott, 12 Neb. 328; Carter v. Jennings, 24 Ohio St. 182." Says NORVAL, J., in the opinion in that case: "True, no conditional order of revivor in the names of the heirs was made by the district court. But the mode provided by title 13 of the Civil Code, for reviving actions by conditional order, is not exclusive. Section 45 of this Code provides, among other things, that 'in case of the death, or other disability, of the party, the court may allow the action to continue by or against his representative or successor in interest.' It has been held that the proper practice to revive an action under this section is by filing supplemental pleadings, and the service of summons, as in the commencement of an action." Fox v. Abbott, 12 Neb. 328, 333, 11 N.W. 303; Carter v. Jennings, 24 Ohio St. 182. In this case no summons was necessary, as all the parties voluntarily appeared.

In the opinion in Fox v. Abbott, cited above, MAXWELL, J., who wrote the opinion, says, "The chapter providing for a summary revivor of actions is not exclusive. The court undoubtedly has power under section 45 of the Code, to allow the action to be prosecuted by or against the representatives of a deceased party, in which case supplemental pleadings may be filed and summons served as in the commencement of an action. And this is the practice in Ohio under a similar statute. Carter v. Jennings, 24 Ohio St. 182."

While somewhat in the nature of a dictum, because the question for decision was the limitation as to time of reviving a dormant judgment, it is observed by MAXWELL, J., in Hunter v. Leahy, 18 Neb. 80, 81, 24 N.W. 680, that "the mode of reviving actions by motion is not exclusive. A party may, after the expiration of a year, revive an action by bill or supplemental petition. Carter v. Jennings, 24 Ohio St. 182; Fox v. Abbott, 12 Neb. 328, 11 N.W. 303; Pendleton v. Fay, 3 Paige Ch. [N.Y.] 204; 2 Daniels Ch. Pr. (4th ed.) 1509; Maxwell, Pl. & Pr. (3d ed.), 695."

It is insisted, however, by counsel for appellee that, conceding the summary proceedings authorized by the statute on a conditional order are not exclusive, yet the limitation as to time must control, whatever may be the mode...