Nicora v. Demosthenes, 3670

• Decision Date: 14 April 1952
• Docket Number: No. 3670,3670
• Citation: 243 P.2d 253,69 Nev. 137
• Parties: NICORA et al. v. DEMOSTHENES.
• Court: Nevada Supreme Court

Page 253

243 P.2d 253

69 Nev. 137

NICORA et al. v. DEMOSTHENES.

No. 3670.

Supreme Court of Nevada.

April 14, 1952.

Ernest S. Brown, Reno, for appellants.

Bert M. Goldwater and David Goldwater, Reno, for respondent.

BADT, Chief Justice.

This case is before us on motion of the respondent Peter Demosthenes, as administrator of the estate of John Scabolus, deceased, heretofore substituted for the decedent, to dismiss the appeal of Albert Nicora, Anna Nicora and Mary Bertolino, appellants.

The main question presented for determination is: Does an action for wrongful death survive the death of the alleged wrongdoer where the wrongdoer dies after verdict in his favor but before a decision on appeal?

In April, 1950 Alexander Nicora was injured while riding in a truck owned by John Scabolus. Nicora commenced an action for personal injuries against Scabolus, but died as a result of his injuries before trial, and his widow and two surviving children, the present appellants substituted as plaintiffs, proceeded against Scabolus for damages for the wrongful death of Nicora. A verdict was returned in favor of Scabolus, judgment was rendered thereon and a motion for new trial denied. Plaintiffs perfected an appeal, but after all briefs on appeal had been filed and the appeal set for oral argument, Scabolus died. His administrator, substituted pursuant to stipulation, then moved to dismiss the appeal on the ground that the death of Scabolus had abated the action and rendered the appeal moot.

In support of the motion to dismiss the appeal, respondent relies upon Estes v. Riggins, 68 Nev. ----, 232 P.2d 843, decided by this court June 15, 1951. Construing §§ 8554 and 9194 NCL, 1929, and § 240.01 NCL, 1931-1941 Supp., we definitely held that in this state a cause of action by the widow and children for the wrongful death of the husband and father did not survive the death of the wrongdoer. These sections are referred to at length in Estes v. Riggins, supra, and need not be set forth here. Appellants do not question the propriety of our holding in that case, but rely upon the provisions of § 8561 NCL, 1929, reading as follows:

'An action shall not abate by the death or other disability, of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death or disability of a party, the court, on motion, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action. After verdict shall have been rendered in any action for a wrong, such action shall not abate by the death of any party, but the case shall proceed thereafter in the same manner as in cases where the cause of action now survives by law.'

It is clear that the foregoing section does not provide for the survival of a cause of action but simply for the non-abatement of actions. Notwithstanding the final sentence of the section quoted, it is still necessary that a cause of action be shown upon which the action may rest.

Appellants insist that the survival or continuance of the cause of action mentioned in the first sentence of the section serves in no way to limit the express provisions of the last sentence. They point out that the last sentence of the section providing that the action shall not abate by the death of any party after verdict, includes by its terms 'any action for a wrong,' thus specifically including an action for wrongful death. They say that this sentence further recognizes the lack of limitation by providing that in such situation the case shall proceed thereafter in the same manner as in cases where the cause of action now survives by law. They insist that there is a logical consistency in the statutory provision that in the event of the death of a party (1) the 'action shall not abate' but 'the case shall proceed,' and (2) the fact that the cause of action does not survive or continue; and that this is so because the cause of action is now merged in the verdict; that such verdict has become a property right of appellants; that, although the verdict was adverse to appellants, the right of appellants to have the case 'proceed thereafter' necessarily embraced the right to attack the verdict (and the judgment based thereon and the order denying new trial) by appeal, since it has in the interim no finality; that under well recognized principles of law, the final judgment as ordered by this court would be entered nunc pro tunc as of a date anterior to the death of the defendant.

None of these contentions can prevail against the two outstanding facts: (1) Appellants no longer have a cause of action for wrongful death. (2) The verdict in the case was in favor of defendant.

Appellants concede 'that in cases where the cause of action does not survive, the death of a party pending an appeal from a judgment for the defendant abates the action.' Indeed the authorities so conclusively establish this view, in the absence of any statute to the contrary, as not to permit of dispute. See Annotation to Lew v. Lee, 62 A.L.R. 1048, 1053, where numerous cases are cited in support of the statement that, in cases where the cause of action does not survive, the death of a party pending an appeal from a judgment for the defendant abates the action. See also Bank of Iron Gate v. Brady, 184 U.S. 665, 22 S.Ct. 529, 46 L.Ed. 739; Hartleroad v. Seward, 101 Ind.App. 254, 199 N.E. 168; also 1 C.J.S. 175, Abatement and Revival, § 128. Appellants concede this general rule, but refer us to Vitto v. Farley, 6 App.Div. 481, 39 N.Y.S. 683, claiming that this case held contra and that in view of the similarity of the New York code provisions to our own we should be inclined to follow it. In that case however, while it is true that the order appealed from favored the defendant, the verdict itself was in favor of the plaintiff. This verdict had been set aside and a new trial ordered, from which order an appeal had been taken to the appellate division of the supreme court (the trial court). The appeal under immediate consideration was from the denial of the...