McCormick H. Mach. Co. v. Snedigar

• Decision Date: 04 October 1892
• Citation: 3 S.D. 302,53 N.W. 83
• Parties: McCORMICK HARVESTING MACHINE COMPANY Plaintiff and respondent, v. SNEDIGAR, Defendant and appellant.
• Court: South Dakota Supreme Court

3 S.D. 302

53 N.W. 83

McCORMICK HARVESTING MACHINE COMPANY Plaintiff and respondent,

v.

SNEDIGAR, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Kingsbury County, SD Hon. J. O. Andrews, Judge Appeal dismissed Melville & Langley Attorneys for appellant. J. E. Diamond, J. F. Watson and S. B. Van Buskirk Attorneys for respondent. Opinion filed Oct. 4, 1892

KELLAM, J.

On the 30th day of November, 1889, in the circuit court in and for Kingsbury county, judgment was rendered in this action against defendant Snedigar and defendant Whitney, as the administrator of the estate of Tuttle, deceased, upon a note made by said Snedigar and said Tuttle, deceased. On the 3d day of December, 1891, Whitney, as such administrator, caused to be served on the plaintiff and respondent a notice. of appeal to this court from said judgment and from an order refusing a new trial, and caused to be served and filed the usual undertaking. Respondent moves to dismiss the appeal, for the reason that, long before said appeal was so attempted to be taken, the said Whitney had been fully discharged as such administrator, and he and his sureties released from liability on that account. It is admitted that, after the rendition of the judgment, and on the 15th day of May, 1890, the said Whitney was, upon full report and accounting, formally discharged as such administrator by the probate court of the proper county, and his successor as such administrator appointed, who thereupon duly qualified. This appeal was taken by said Whitney as administrator, or in his name, more than a year and a half after he had been so discharged.

The motion to dismiss must be allowed. In Dalbkermeyer v. Scholtes,(1892), we dismissed an appeal upon a showing that the appeal was taken and prosecuted without authority from the appellant. In this case the real party in interest —the real appellant—may be the estate of the deceased Tuttle, but the party who actually brings and prosecutes the appeal is shown to have no authority to represent such estate. Suppose we retain this case, and, upon hearing, render judgment against the appellant; who is bound? Not the estate of Tuttle, for we know, and it is admitted, that Whitney, the nominal appellant who brought the appeal, has no authority to appear for the estate, and that we get no jurisdiction over it. Not Whitney himself, for his notice informs us at the outset that he appeals only in a representative capacity. As administrator, Whitney was dead when, and long before, the appeal was taken. An appeal taken in the name of a dead person gives the appellate court no jurisdiction. Taylor v. Elliott, 52 Ind. 588; Branham v. Johnson, 62 Ind. 259; Sanchez v. Roach, 5 Cal. 248; Judson v. Love, 35 Cal. 463; Coffin v. Eddington, (Idaho,) 23 Pac. 80; Tracy v. Roberts, 59 Iowa, 624.

It is claimed and argued by appellant’s counsel that the discharge of Whitney as administrator, and the appointment of his successor, operated as a transfer of the cause of action from the old to the new administrator, but that, under section 4881, Comp. L...