James W. Moyle
Before: McFarland
Synopsis
Appeal—'Service of Notice—Death of Respondent. — Where an appellant, in ignorance of the death of the respondent, serves a notice of appeal on the attorney who had appeared for the latter, and the service is accepted by him, the appeal will not be dismissed on a motion made by the attorney who accepted the service, on the ground that the service was void, because made after the death of the respondent.
McFarland, J. This case is now before us upon a a motion to dismiss the appeal as to the respondent Michael Landers, and his legal representatives.
Upon an examination of the papers, we find that there were several defendants in the court below, and that they all appeared by the same attorney of record. Judgment went for defendants; and in due time plaintiffs filed their notice of appeal, and served it on the said attorney of record, who accepted service for all the defendants. As a matter of fact, however, the defendant Michael Landers had died between the entry of .the judgment and the service of the notice of appeal,—this fact being unknown to plaintiffs or their attorney. And this motion is based on the ground that the service of the notice of appeal was void, because at the time of the service the said Landers was dead; and it is made by the same attorney who accepted the service.
[596]In such a case this court will not entertain a motion to dismiss the appeal made by the attorney who accepted service for the dead man. The motion to dismiss is denied without prejudice.
Searls, C. J., Paterson, J., and Sharpstein, J., concurred.
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