Campbell v. West

Fitzgerald, C. This is an appeal upon the judgment roll from a decree foreclosing a mortgage executed by defendants.

It appears that the original plaintiff died while this case was pending here on a former appeal (86 Cal. 197), and that the present plaintiff was thereupon substituted as administrator of the estate of said deceased, upon the suggestion and motion of plaintiff’s attorney.

After the reversal of the judgment and the filing of the remittitur in the court below, plaintiff moved for and obtained leave to file.an amended complaint, in which, among other things, he alleges: “ That on or about the - day of April, 1890, Robert Campbell, the original plaintiff in said action, died testate in the county of Los Angeles, California, and that subsequently, to wit, on or about the twelfth day of June, 1890, said David F. Campbell was duly appointed and qualified as executor of the last will and testament of said deceased, and ever since has been, and now is, the duly acting and qualified executor cf the estate of-said deceased.”

The amended complaint was duly filed, and a copy thereof personally served on each of the defendants, but no copy was served on their attorney.

Defendants having failed to appear and answer or demur to the amended complaint within the time al[656]lowed by law, no further time having been granted by the court, the default of the defendants was duly entered.

It is claimed, with some show of seriousness, that “the facts upon which the present plaintiff’s cause of action depends are the death of the original plaintiff, and his appointment as executor of the estate of said deceased, and substitution as such executor in place and stead of said deceased. These facts could not be set forth by amended complaint,” but should have been pleaded by supplemental complaint.

Section 385 of the Code of Civil Procedure provides, among other things, that “in case of the death or any disability of a party, the court, on motion, may allow the action or proceeding to be continued by or against his representative or successor in interest.” And the practice in this state is well settled, in such cases, for courts to allow the substitution to be made, upon suggestion of the death of a party, and on an ex parte motion showing the appointment and qualification of the executor or administrator of the estate of the deceased party.