At common law, the death of a party, or, in case of a plurality of plaintiffs or defendants, the death of one or more of them would, in general, abate the action. (Paine and Buer’s Pr. 211.) The rule however has from time to time been modified and changed by the Legislature. (1 R. L. 519, § 9; 2 id. 312, § 10; 2 R. S. 386, 387, §§ 1, 2, 3, &c.; Code, § 121.)
It was never regular, either by common law or statute, to enter judgment against a person after his death. Formerly the court would, sometimes, after the death of a party, order a final judgment to be entered in his favor or against him, where judgment nisi, or interlocutory judgment had been entered in his life time, and the final judgment deferred by a case or bill of exceptions and order to stay proceedings, and perhaps in some other cases; but then, the final judgment would be ordered to be entered nunc pro tunc, as of some time when the deceased party was alive, so that the record would show the judgment to have been entered while he was living. In the present case the judgment has been rendered and docketed against the plaintiff, Holmes, since his death. This was technically irregular, and must be set aside. It is a joint judgment against *385both the plaintiffs, and must be set aside as to both. At first, I thought the judgment might be amended, so as to let it stand as against the plaintiff, Palmer; but upon reflection I think that cannot be done, as no order has been made allowing the action to proceed in favor of the surviving plaintiff; it being a case where the cause of action survived. It was, in my judgment, irregular to proceed with the action after the death of Holmes, until such order had been obtained, which might have been done on motion of either party.
An order must therefore be entered setting aside the judgment, and that the action proceed in the name of the surviving plaintiff. No costs of this motion are to be allowed to either party as against the other.