ON MOTION TO STRIKE OUT. A petition to transfer the above entitled cause to the Supreme Court shows that on March 15, 1928, the Appellate Court affirmed a judgment of the probate court of Marion county against Robert Elliott, sole appellant on appeal; that thereafter, on April 22, 1928, appellant Robert Elliott died; that on May 14, 1928, the attorneys of record, who had represented decedent in his lifetime in the prosecution of his appeal in the Appellate Court, filed therein a petition for a rehearing in the name of the decedent. A motion by appellees to strike the petition for a rehearing from the files for want of a party in interest as a petitioner was sustained by the Appellate Court, and that ruling is the basis for the petition to transfer the cause to the Supreme Court.
The petition to transfer asks this court to take jurisdiction of a cause wherein it is made to appear that the party in 6. whose interest the petition is filed died prior to the filing of the petition. *Page 462 Conceding that the attorneys who filed the petition here in question represented the decedent in his lifetime in this particular cause, the death of the party so represented would end the power of such attorneys to act further in the matter.Harness v. State, ex rel. (1877), 57 Ind. 1, 5; Rundles v.Jones (1851), 3 Ind. 35, 38.
The facts brought to our attention indicate that the action might have been revived by substitution notwithstanding the death of Elliott prior to the filing of the present petition to 7. transfer, but, as no substitution was had, we hold that the petition filed in the name of the dead party is a nullity, and hence subject to the motion to strike it out. Branham v.Johnson (1878), 62 Ind. 259; Taylor v. Elliott (1876),52 Ind. 588; Taylor v. Elliott (1876), 53 Ind. 441; Moore v.Slack (1894), 140 Ind. 38, 39 N.E. 237; Bruiletts Creek CoalCo. v. Pomatto (1909), 172 Ind. 288, 88 N.E. 606; Ehlers v.Hartman (1906), 37 Ind. App. 617, 77 N.E. 745.
Motion to strike out is sustained.