Judson v. Love

California Supreme Court Jul 1, 1868Published

Before: Sawyer

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Holding. Proceedings taken in a lawsuit after the death of a party, excluding the entry of judgment on a verdict, are void and ineffectual where the deceased's representatives have not been substituted as parties. An attorney's authority to represent a client terminates upon the client's death, rendering subsequent notices served upon or by said attorney invalid.

Issues

Whether proceedings taken after the death of a defendant, without substituting his legal representatives, are valid.
Whether an attorney retains authority to act for a client after the client's death.
Whether an executor must be formally made a party to a suit before being bound by proceedings therein.

Disposition. dismissed

Quotations verified verbatim against the opinion

“It is clear that all these proceedings, except the entry of judgment on the verdict before rendered, had since the death of defendant., Harlow S. Love, on the 15th day of March, 1866, are irregular and void’ as to him and his successors”

“The power of attorney necessarily ceased with the death of the principal.”

Synopsis

Judgment for or against a Party Deceased.—Where á party to an action dies after verdict or other decision therein, judgment in pursuance of such verdict or decision may nevertheless bo rendered as provided in section two hundred and two of the Practice Act, but in no other such case can judgment be rendered so as to affect the interests of the representatives or successors of the party deceased, without the proper substitution of such representatives or successors.

Idem—Motion for New Trial and Appeal after Death of Party. —Where, in an action by J. against L. and others, L. died after verdict rendered for defendants, and thereafter J. moved for a new trial, without suggestion made of the death of L., or a substitution of his successors in interest, and appealed from the judgment rendered on the verdict and an order denying a new trial: Held, that all said proceedings, except the rendition of judgment upon said verdict, . were void, and that the appeal as to L. should be dismissed.

Idem—Authority of Attorney of a Party Deceased.—Where a party litigant dies after verdict, the authority of his attorney to act for him is thereby determined, and he can neither give nor receive notice of motion for new trial or of appeal.

Idem.—If the attorney be the executor of the will of the party deceased, though it were admitted that he became executor before the probate of the will, yet he will not become a party to the suit until he is made so in due form.

Mode of Showing the Death of a Party and Substitution of his Legal Representatives.—The death of a party pendente lite should be made known by suggestion of that fact to the Court, and the action continued by order of the Court against the representative of the party deceased, of which he'must be duly notified before he can be affected by further proceedings in the action.

Suggestion of the Death of Party—When it may be Made. — It is regular and proper to suggest the death of a party to an action in any Court and at any stage of the proceedings. And the death of a party occurring before the appeal taken may be shown in this Court by affidavit of the fact.

Idem — Motion to dismiss Appeal as to Party Deceased — Practice. — Regularly, the appellant is, under the rule, entitled to five days notice of motion to dismiss an appeal and to service of copies of moving affidavits but where, in the absence of such notice and service, the motion is submitted on the merits, and the objection is taken for the first time in brief of counsel, the objection will be deemed waived. Moreover, in such a case any judgment that might be rendered on appeal, so far as it related to the party deceased or his legal representative, would be a nullity, whether the death wore brought to the notice of the Court judicially or not.

By the Court, Sawyer, C. J.: A motion is made to dismiss the appeal as to the defendant Love, based, firstly, upon exceptions to the transcript; and, secondly, upon affidavits filed, showing that defendant, Love, died on the 5th of March, 1866, after the rendition of the verdict in the Court below, and before any notice of inten-. tion to move for a new trial was given, on the ground that all subsequent proceedings on motion for new trial, and the attempt to appeal, are void and ineffectual for any purpose as to said defendant, Love, and his successors in interest, for want of any proper party to the suit, or of any person upon [467]whom a valid service of papers could be made. It is claimed by appellant, that the defects in the record have been supplied, and, for the purposes of our decision, it may be so assumed. Conceding the record to be sufficient upon its face, it shows that defendant, Harlow S. Love, was represented in the case by his attorney, John Lord Love; that on the 17th of March, 1866, notice of intention to move for a new trial was served on said attorney, John Lord Love; that the necessary papers were prepared, and motion for new trial made and denied on the 13th of April, 1867; and that on the 25th day of April, 1867, a notice of appeal from the judgment and order denying new trial was served on John Lord Love. It nowhere appears in the transcript, whether said John Lord Love took any part in the proceedings in the Court below, subsequent to the service on him of the notice of motion for new trial. It does not appear that the death of Harlow S. Love was ever suggested in the Court below, or that his representatives have ever been in any way made parties to the action. The affidavit of said John Lord Love, filed in this Court before the calling of the case for argument, as the basis, in part, of the motion, shows that defendant, Harlow S. Love, died on the 15th of March, 1866—two days before the service of notice of intention to move for a new trial.

It is clear that all these proceedings, except the entry of judgment on the verdict before rendered, had since the death of defendant., Harlow S. Love, on the 15th day of March, 1866, are irregular and void’ as to him and his successors in interest. There was from that time forth no party before the Court as to the interest of Love in the matter in controversy, and no one authorized to represent it. The power of attorney necessarily ceased with the death of the principal. Ho further proceedings could be had without bringing in the representatives of Love. The Practice Act authorizes a judgment to be entered upon the verdict, when a party dies after verdict and before judgment, (Sec. 202,) but this is as far as it goes. Warren v. Eddy, 13 Abb. Pr. 30, is in point.

Judson v. Love

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