Whartenby v. Reay

The Court. This is a motion to dismiss an appeal, upon the ground that no transcript of the record has been filed in this court.

It is conceded by appellant that the time allowed by law for filing the transcript expired long since, but he insists that the attorney who filed the moving papers has no authority to act in the matter.

The attorney in the lower court was A. N. Drown, and the motion to dismiss the appeal is signed by A. N. Drown, as attorney for plaintiff; but it appears by affidavit, that the plaintiff, Whartenby, died in the year 1890, and at the time this motion was noticed for hearing, the executors of deceased had not been substituted in this court as parties plaintiff.

At the time the notice of motion was given, executors of the estate of said deceased Whartenby had been appointed by the lower court, had qualified, and said Drown was acting as their attorney. When appointed, all rights and interests in this litigation vested in them; they were the real parties in interest, and the fact that the order of their substitution pro forma as plaintiffs had [75]not been made in this court at that time (and which was made upon the hearing of the motion) is not sufficient to deprive the executors’ attorney of the authority to make the motion.

Let the appeal he dismissed.

Hearing in Bank denied.