The opinion of the court was delivered by
Taft, J.Ophelia L. Snow recovered a judgment at the September Term, 1877, of the County Court against Daniel Carpenter and Daniel 0. Carpenter. The cause was taken to the Supreme Court and heard at the term in February, 1878, and held by the court under advisement, until the February Term, 187 9. Daniel Carpenter deceased on the 23d day of January, 1879 ; an administrator, and commissioners for the adjustment of claims were appointed upon his estate on the 3d day of February, 1879; and on the 17th day, at the opening of the term of the Supreme *20Court for that year, the death of Daniel was suggested to the court, and an entry thereof made upon the record ; and on the 21st day the judgment of the County Court was affirmed. The judgment (the claimant insisting upon the damages and costs as entered in the Supreme Court), was presented to the commissioners and by them disallowed; an appeal by said Snow was taken to the County Court; the ease heard upon an agreed statement of facts, and a pro forma judgment against the appellant entered. The case is now before us upon exceptions to the ruling of the County Court.
The judgment of the County Court in the original action was a complete and final one, and until reversed or annulled was decisive of the rights of the parties. The original cause of action was merged in the judgment; and no question as to the survival of that action can now be made. It is true that the cause passed to the Supreme Court, but it went by way of exceptions, and exceptions have always been regarded in this State as in the nature of a writ of error. Their allowance does not vacate the judgment; that remains final and valid until reversed or affirmed. Executions may issue upon such judgments unless stayed by special order ; and actions of debt may, except in cases of such stay, be maintained upon them while the caiise is pending in the Supreme Court. The doctrine that all cases passing to the Supreme Court on exceptions are to be viewed as matters in error is so well settled, that it is needless to refer to the decisions in support of it. The appellee claims that the suit was discontinued as to Daniel Carpenter by the appointment of commissioners to allow claims against his estate, by force of sec. 16, ch. 53, Gen. Sts., providing for the discontinuance of pending actions, upon the appointment of commissioners on the estate of a deceased person. This question was made and decided in the case of Walker v. King, 2 Aik. 204. King, the .defendant, having died after judgment in the County Court, and after the case had been removed to the Supreme Court, on exceptions taken at the trial, his attorney of record moved that the action be discontinued; but the court were all of the opinion that there having been a judgment below, and the case standing on exceptions, they were to be regarded in the *21nature of a writ of error; and the case was disposed of in that court notwithstanding the death of the defendant. The case was held under advisement, and the judges then present were four who at times served as Chief Judges, Skinner, Prentiss, Hutchinson, and Royce.
In case one of the parties dies after judgment in the County Court and before hearing in the Supreme Court, the practice is to affirm or reverse the judgment nunc pro tuno. 8 Vt. 190 ; Freeman on Judgments, sec. 57. Had this been done no question could have arisen as to the validity of the judgment; but it was entered generally as of the time of its rendition.
The rights of the appellant are not affected by sec. 19, ch. 52, Gen. Sts., permitting an action, the cause of which survives, where there are several defendants and one dies before final judgment, to proceed against the surviving defendant, the death being suggested upon the record, as that section relates to cases where the party dies before final judgment. In this case the defendant Daniel died after judgment; and the provisions of that section as to citing in the administrator or executor of a deceased party apply to those cases only in which there is but one plaintiff or one defendant, and such sole party dies.
What then was the effect of the action of the Supreme Court ? Upon the affirmance of a judgment of the County Court, the statute ch. 30, sec. 59, requires the Supreme Court “ to render judgment and directs what shall be entered as damages. We think in this case that the claim became a judgment of the Supreme Court, and being valid, the judgment of the County Court became merged therein.' “A judgment is extinguished when being used as a cause of action it grows into another judgment.” Freeman on Judgments, s. 216, citing 3 Monroe, 425; 7 Eng. 549;
No injustice is done the appellee in this case by reversing the judgment of the County Court; for one of the two judgments is a legal claim against the estate. If the action of the Supreme Court in affirming the judgment at the February Term, 1879, was not irregular, then it is a charge upon the estate ; but if the judgment of the Supreme Court was void, then the one of the County Court remains valid, as no claim merges in a void judgment, and is a *22legal demand against the estate of the appellee, and is properly before us upon the agreed statement of facts.
The authorities upon the question of whether a judgment against a party rendered subsequently to his death is or is not void are conflicting. To hold them null seems to us an impeachment of the judgment by evidence not contained in the record. But what is the effect of a judgment rendered against a deceased party, where the fact of his previous death appears upon the record ? Even in such cases we think the judgment, though erroneous, is not void ; and should be given full force until reversed, or set aside by some competent judicial authority. “ This is because the court, having obtained jurisdiction over the party in his lifetime, is thereby empowered to proceed with the action to final judgment; and while the court ought to cease to exercise its jurisdiction over a party when he dies, its failure to do so is an error to be corrected on appeal if the fact of the death appears upon the record, or by writ of error coram nobis if the fact must be shown aliundeFreeman on Judgments, sec. 153.
It cannot be said that the party in interest had no opportunity of being heard ; for as was said by the court in Adams v. Newell, supra, an administrator may always defend or prosecute pending a writ of error.
The pro forma judgment of the County Court is reversed, and judgment for the appellant and cause ordered to be certified to the Probate Court.