In re Young's Estate

• Decision Date: 01 August 1911
• Citation: 59 Or. 348,116 P. 1060
• Parties: In re YOUNG'S ESTATE.
• Court: Oregon Supreme Court

116 P. 1060

59 Or. 348

In re YOUNG'S ESTATE.

Supreme Court of Oregon

August 1, 1911

Appeal from Circuit Court, Multnomah County; H.J. Bean, Judge.

On petition for rehearing. Petition denied.

For former opinion, see 116 P. 95.

McBRIDE, J.

The petition for rehearing in this case is based solely upon the failure of contestants to serve a notice of appeal upon the personal representatives of Mrs. Caroline Phillips, who died pending the hearing of this cause in the circuit court.

The facts of the case are these: Mrs. Phillips and the other contestants appeared together in the county court to contest the validity of the will presented by Mabel Warner proponent. In that court they procured a decree, declaring the proposed will a forgery, and void. Proponent appealed from this decree to the circuit court, and, pending a hearing in that court, Mrs. Phillips died. No substitution was made and the cause was heard and determined as though Mrs Phillips were alive, and the decree of the county court was there reversed, and a judgment for an unspecified amount of costs was entered against all the defendants, including Mrs Phillips. The contestants appealed to this court, and here for the first time, on motion to dismiss the appeal, counsel for proponent suggested that Mrs. Phillips was an adverse party; that counsel could not appear for her on this appeal without substitution; and that, as her legal representative had not been so substituted, all adverse parties had not been served, and therefore that the attempt to appeal was nugatory.

This court has not yet decided whether a judgment, given against a person who dies before the hearing and submission of a case, is void, or whether it is merely voidable, and the authorities are hopelessly divided upon that subject. But upon every principle of reason and justice such a judgment ought to be held an absolute nullity. Mrs. Phillips at her death had a decree in her favor, conferring upon her valuable property and pecuniary rights. Her death revoked the authority of counsel to appear and represent her or her estate in the circuit court. The decree of the circuit court attempted to take these rights away and further to give a personal judgment against her for costs. While many courts, and perhaps a majority, have held that such a judgment is voidable, and not void, their reasoning does not convince us that a judgment against a person not in existence is anything other than wholly void, or that it can possibly bind any one. It may well be granted that, where a cause has been argued and submitted and the decision is in the breast of the judge, and nothing remains but the ministerial act of causing it to be recorded, this function may be performed nunc pro tunc after the death of a party; or where default has been taken, and before entry of judgment the death of a party occurs, the entry of judgment, which is a mere ministerial act of the clerk, may be proper and regular; but that, where death occurs before a hearing upon the merits, the court may pass judgment upon the rights of a decedent, and deprive him or his unrepresented estate of valuable property, is a proposition so illogical and unjust that we cannot assent to it, even though decisions parroted down from one court to another, with hardly a pretense of reasoning to support them, may preponderate in number over those holding the contrary doctrine.

At common law a suit was abated by the death of a party. 2 Mod. *308; 2 Saund. 72 M. This rule is relaxed by section 38, L. O.L., which provides that the action shall not abate by the death of a party, if the cause of action continue or survive, and that the court, at any time within one year thereafter, on motion, may allow the action to be continued against his personal representatives or successors in interest. The effect of this section is to suspend the suit until such substitution is made. McBride v. N.P.R.R. Co., 19 Or. 64, 23 P. 814. It is conceived that such suspension has the same temporary effect on the rights of the parties as though the suit were actually abated; that neither party can move in the case until a substitution is ordered; and that during the interval between the death of the party and substitution of his legal representatives the disabilities of either party remain the same as at common law.

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