Lyons v. Roach — 72 Cal. 85

Majority

p. 85

[No. 11918.

Department Two.

February 21, 1887.]

MICHAEL LYONS et al., Executors, etc., of Denis Lyons, Deceased, Respondents, v. PHILIP A. ROACH, Administrator, etc., of Mary Cunningham, et al., Appellants.

Headnote

Appeal ■—■ Death op Respondent Pending—Dismissal—Substitution op Personal Representatives.—Where a respondent dies pending an appeal, a motion by bis personal representatives for its dismissal will not be entertained until they have been substituted in the Supreme Court in his place. A substitution in the lower court is not sufficient.

Appeal from a judgment of the Superior Court of the city and county of San Francisco.

The motion was m.ade to dismiss the appeal, on the ground that the appellants had failed to file the transcript within the time required by the rules of the Supreme Court. The further facts are stated in the opinion of the court.

Matt. I. Sullivan, for Appellants.

J. C. Bates, for Respondents.

—Motion to dismiss appeal on clerk’s certificate.

When the notice of this motion was served, and the motion brought to a hearing, the plaintiff in the action (Denis Lyons), when the judgment appealed from was entered, and the notice of appeal is claimed to have been served and filed, was dead, having departed this life long prior to the time first above mentioned. This appears by affidavits used on the motion, and is a sufficient suggestion of his death in this court. On such suggestion being made, this court has no authority to proceed further in the cause until his personal representatives have .been substituted as parties in this court; and until such substitution has been made, no motion can be made to

p. 86

dismiss the appeal. A substitution ' of the representatives of the deceased plaintiff in the court below, made long after the judgment and the taking of the appeal to this court, cannot be noticed here. The parties, under the condition of matters above stated, must be substituted here before any motion can be made or heard, or any available notice thereof given.

The motion must be denied. As we hold that there is no motion before us, it is unnecessary to say that such denial is without prejudice to a motion when the proper persons have been made parties in this court.

Motion denied.