Stickney v. Davis

Shaw C. J.

delivered the opinion of the Court. Upon this petition to vacate a judgment as having been erroneously entered, after the death of the plaintiff, notice was given to the defendant and thereupon the parties have been heard. The course indicated by the plain dictates of just ce, and by the spirit of the statutes, is very clear. I allude to the statutes allowing representatives to come in and- prosecute and defend, upon the death of either of the parties to a civil action, in any stage of the suit. In the iresent case the plaintiff died after the trial of the cause, and a verdict in his fav» ¡, but before the entry of judgment. Where a cause, after argument, is held under advisement, the Court will order a judgment to be entered nunc pro tunc, to avoid entering an erroneous judgment, where a party has died in the mean time. Where it clearly appears that no action has been had on the judgment, or the execution, if one has been issued, has been returned to the files unexecuted, and where the rights of third persons cannot be affected, there seems to be no reason why the same thing should not be done by vacating the entry of judgment and bringing the action forward. This ought to be done with great caution, and with a strict regard to the rights of others.

Let the entry of judgment at the October term, 1834, be vacated, a suggestion of the death of the plaintiff entered, and the cause be continued, without costs, to the April term, and thence to this term.

And now, the execution being first returned and cancelled, the petitioner is permitted to come in and prosecute as administrator of the plaintiff, and judgment is rendered on the verdict.