Nickerson v. Nickerson

• Decision Date: 05 April 1897
• Citation: 48 P. 423,34 Or. 1
• Parties: NICKERSON v. NICKERSON.
• Court: Oregon Supreme Court

48 P. 423

34 Or. 1

NICKERSON v. NICKERSON.

Supreme Court of Oregon

April 5, 1897

Appeal from circuit court, Linn county; H.H. Hewitt, Judge.

Action by Elizabeth M. Nickerson against Hugh Nickerson, in which there was a decree for plaintiff, from which defendant appealed. Both parties move to dismiss the appeal, on a suggestion of appellant's death. Denied.

N.M. Newport and M.C. George, for appellant.

J.K Weatherford, for respondent.

WOLVERTON J.

The plaintiff on January 27, 1896, obtained a decree of divorce against the defendant, and thereby the title to an undivided third of defendant's real property. The defendant sought a divorce, also, by cross bill, which was dismissed. After an appeal had been perfected, the defendant died, and both parties, by their respective attorneys, upon suggesting his death, filed motions to dismiss the appeal, but for very different purposes. Counsel for defendant claims that his death abates the suit, and that this court should dismiss the appeal, with directions to the court below to dismiss the suit, so that the relation of the parties would then stand as if no suit had ever been begun or decree rendered, while the plaintiff claims that defendant's death abates the appeal only, and that the decree of the court below remains in full force and effect, as a final determination of the rights of the parties thereto. Neither position can be maintained. In Day v. Holland, 15 Or. 464, 15 P. 855, it was decided that under the code procedure an appeal from a decree does not break it up nor vacate it, and that it may be carried into execution notwithstanding the appeal, unless stayed by a supersedeas undertaking. We are aware that there is a strong dissenting opinion in the cause cited wherein cogent reasons are given why the old equity practice should still prevail in that regard, notwithstanding the innovations of the Code; but we feel bound by the prevailing opinion, and are constrained to follow it as a precedent. It is provided by statute that "no action shall abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue"; and that "an action for a wrong shall not abate by the death of any party, after the verdict has been given therein, but the action shall proceed thereafter in the same manner as in cases where the cause of action survives." Hill's Ann.Laws Or. §§ 38, 39. These appear to be all the statutory provisions pertaining to the subject. It is quite apparent, from the very nature of things, that the cause of suit does not survive the death of a party where the only relief sought is a dissolution of the marriage relations, for death effectuates more surely the very end which it is the especial purpose of the suit to accomplish. As was said by Cotton, L.J., in Stanhope v Stanhope, 11 Prob.Div. 103, 105, "It would be a singular thing, if, after the marriage had been dissolved by death, there were power to declare it at an end on another ground." The authorities are uniform upon this proposition. See Barney v. Barney, 14 Iowa, 189; Wilson v. Wilson, 73 Mich. 620, 41 N.W. 817; Kirschner v. Dietrich, 110 Cal. 502, 42 P. 1064; Pearson v. Darrington, 32 Ala. 253; McCurley v McCurley, 45 Am.Rep. 720. But, where the consequences of the divorce are such as affect the...