delivered the opinion of the court.
1. This motion was made under the provisions of Section 103, B. & C. Comp., to be relieved from a judgment taken against plaintiffs through their mistake, inadvertence, surprise, or excusable neglect. The facts set forth in the affidavit of J. H. Glide, Jr., disclose that he knew a counterclaim had been filed against plaintiffs, but that he did not know it was necessary to reply thereto; that *569he received notice September 23, 1907, that the trial of the cause had been set for October 1, 1907; that it was impossible for him to be at Portland, Oregon, at such time, for the reason that litigation was pending regarding his father’s estate. But he states no facts from which the court can say that it was impossible for him to attend the trial or send his deposition. Nor was any showing made to the court for a postponement of the trial. It appears from his affidavit that he made the sales to defendant out of which this action arose, and therefore the knowledge of the facts, in relation to the matters being litigated, were within his knowledge; and, as shown by the affidavit of John F. Logan, who, with Robert Galloway, was acting as attorney for plaintiffs, J. H. Glide, Jr., advised them that the case, so far as plaintiff was concerned, would go by default, as against the counterclaim of Byrkett. The affidavit of Lizzie H. Glide, widow of the deceased, and executrix of his will, states that in March, 1907, she was asked by her attorneys what should be done in the case, and she advised Robert Galloway, her attorney, that she could not obtain any further particulars regarding the matter, and advised him that, if a settlement could not be effected, the matter be dropped. Her affidavit contains no statement of facts from which the court can say that it was impossible for her to attend to the litigation. Although she was not appointed executrix of the will until October 9, 1907, yet the will contest resulted in a decree July 30, 1907, and an administrator of the estate could have been appointed in Oregon at any time to appear in the action. These conditions establish that it was not an abuse of discretion for the lower court to deny the motion.
2. Counsel for plaintiffs, in his brief, urges that the judgment, so far as it relates to J. H. Glide, deceased, is void and should be vacated, at least as to him, and the reply filed. When a party to an action dies before the *570litigation is terminated, the action does not abate if the cause is one that survives under Sections 379 and 380, B. & C. Comp.
3. But the personal representative of deceased should be substituted under Section 38, B. & C. Comp., which provides that no action shall abate by the death of a party, and, in case of such death, the court may, at any time within one year thereafter, on motion, allow the action to be continued for or against his personal representatives. The administrator in this case, has no standing or right to appear therein unless he either has been substituted in the action or is entitled to be substituted, and this is part of the relief he seeks by this motion to vacate, but his application was not made within a year from the death of his testator, and comes too late. In Long v. Thompson, 34 Or. 359 (55 Pac. 978), it is held that the motion for substitution must be made within the year. To the same effect is Dick v. Kendall, 6 Or. 166. And in Barker v. Ladd, 3 Sawy. 44 (Fed. Cas. No. 990), it is held that this Section 38 is a statute of limitations, and if the right to move for substitution is not exercised within one year it is taken away: Matter of Borsdorff, 17 Abb. Pr. (N. Y.) 168, 171. Therefore the administrator has no standing to ask for substitution or to reply in the action.
4. The death may be suggested by either party, and the motion should be made by the party desiring to proceed with the action. 5 Enc. Pl. & Pr. 841.
5. Neither the motion, nor the affidavits, attacks the judgment, because it is void, nor is relief asked on that ground. If the judgment is void, as to plaintiff J. H. Glide, then it cannot be enforced against the estate of decedent; but it is not void as to J. H. Glide, Jr., although it purports to be a personal judgment against both plaintiffs, yet as to J. H. Glide, Jr., and the joint property, it is such an one as is provided for by Section 61, B. & C. Comp., viz., that if the summons is served on one or more *571of the defendants, but not all, in an action upon a joint liability, judgment may be entered against all the defendants jointly liable, so far only that it may be enforced against the joint property of all and the separate property of the defendants served. Although joint liabilities are not declared by our statute to be joint and several, as in the case in Missouri (Holton v. Towner, 81 Mo. 360), it does, by that section, provide for a several judgment as to the defendants served, in cáse there is a joint party over whom the court has not obtained jurisdiction. That statute will apply equally to pláintiffs where the judgment is obtained against them. In this case plaintiffs, being jointly liable upon a cause of action set up in the answer, and but one of them being subject to the jurisdiction of the court, judgment against the one is proper.
There was no error in denying the motion.
Affirmed.