Singh v. Cross

LANGDON, P. J.

This appeal by the defendants from a judgment against them for $9,000 involves the same matters argued by appellants in the eases of

Chanan Singh et al.

v.

Cross et al., ante,

p. 309 [212 Pac. 946], and

Baboo Singh et al.

v.

Cross et al., ante,

p. 322 [212 Pac. 951], and considered by this court in opinions filed in said cases this day. The lease involved in the instant case is substantially the same and the evidence is substantially the same as in the two cases mentioned, and the reasoning of said cases is applicable here.

The one additional point made in the present case is the objection that the judgment should not have run in favor of the plaintiff Jawala Singh, because of his death subsequent to the commencement of the action. The action was commenced in August, 1918. In October, 1918, Jawala Singh died. Suggestion of said death was made in open court and counsel stated that the administrator of the estate of deceased would be substituted. No substitution appears to have been made, however, and on August 10, 1920, judgment was entered for the plaintiffs, including Jawala Singh.

Subsequently, and on September 30, 1921, it appears from the statement of counsel, an order of substitution was made, but such order is not a part of the record presented to us. However, while the case was pending before this court, an order was duly and regularly made by this court and filed herein, substituting for the plaintiff and respondent Jawala Singh, D. C. Tucker, the administrator of his estate.

The case of

Sanborn

v.

Cunningham,

4 Cal. Unrep. 95 [33 Pac. 894], appears to be in point here. There, as in the present case, the plaintiffs were partners, and one of them died before judgment was entered. Through inadvertence, the judgment was entered in the name of the deceased, instead of in the name of his executors. It was said upon appeal: “The verdict and judgment were entitled ‘Charles Ford, A. D. Morey and J. C. Menasco, partners trading under the