*362Decided August 1, 1911.
On Petition for Rehearing.
[116 Pac. 1060.]
Mr. Justice McBridedelivered the opinion of the court.
The. petition for rehearing in this case is based solely upon the failure of contestants to serve a notice of appeal upon the personal representatives of Mrs. Caroline Phillips, who died pending the hearing of this cause in the circuit court.
The facts of the case are these: Mrs. Phillips and the other contestants appeared together in the county court to contest the validity of the will presented by Mabel Warner, proponent. In that court they procured a decree, declaring the proposed will a forgery, and void. Proponent appealed from this decree to the circuit court, and, pending a hearing in that court, Mrs. Phillips died. No substitution was made, and the cause was heard and determined as though Mrs. Phillips were alive, and the decree of the county court was there reversed, and a judgment for an unspecified amount of costs was entered against all the defendants, including Mrs. Phillips. The contestants appealed to this court, and here, for the first time, on motion to dismiss the appeal, counsel for proponent suggested that Mrs. Phillips was an adverse party; that counsel could not appear for her on this appeal without substitution; and that, as her legal representative had not been so substituted, all adverse parties had not been served, and therefore that the attempt to appeal was nugatory.
5. This court has not yet decided whether a judgment, given against a person who dies before the hearing and submission of a case, is void, or whether it is merely voidable, and the authorities are hopelessly divided upon that subject. But upon every principle of reason and justice such a judgment ought to be held an absolute nullity. Mrs. Phillips at her death had a decree in her *363favor, conferring upon her valuable property and pecuniary rights. Her death revoked the authority of counsel to appear and represent her or her estate in the circuit court. The decree of the circuit court attempted to take these rights away and further to give a personal judgment against her for costs. While many courts, and perhaps a majority, have held that such a judgment is voidable, and not void, their reasoning does not convince us that a judgment against a person not in existence is anything other than wholly void, or that it can possibly bind any one. It may well be granted that, where a cause has been argued and submitted and the. decision is in the breast of the judge, and nothing remains but the ministerial act of causing it to be recorded, this function may be performed nunc pro tunc after the death of a party or where default has been taken, and before entry of judgment the death of a party occurs, the entry of judgment, which is a mere ministerial act of the clerk, may be proper and regular; but that, where death occurs before a hearing upon the merits, the court may pass judgment upon the rights of a decedent, and deprive him or his unrepresented estate of valuable property, is a proposition so illogical and unjust that we cannot assent to it, even though decisions parroted down from one court to another, with hardly a pretense of reasoning to support them, may preponderate in number over those holding the contrary doctrine.
6. At common law a suit was abated by the death of a party. 2 Mod. 808; 2 Saund. 72 M. This rule is relaxed by Section 38, L. O. L., which provides that the action shall not abate by the death of a party, if the. cause of action continue or survive, and that the court, at any time within one year thereafter, on motion, may allow the action to be continued against his personal representatives or successors in interest. The effect of this section is to suspend the suit until such substitution is made. McBride v. N. P. R. R. Co., 19 Or. 64 (23 Pac. 814). *364It is conceived that such suspension has the same temporary effect on the rights of the parties as though the suit were actually abated; that neither party can move in the case until a substitution is ordered; and that during the interval between the death of the party and substitu-. tion of his legal representatives the disabilities of either party remain the same as at common law.
Commenting upon an act similar in terms to that in force in this State, the Supreme Court of Illinois say: “In the nature of things, the deceased defendant cannot plead in abatement, or otherwise interpose the fact, of his own death, and his legal representatives, until brought into court by the plaintiff, as contemplated by the statute, are not supposed to be present, or to know anything about the pendency of the suit; and to hold a judgment obtained under such circumstances binding upon them would seem, not only inconsistent with well-settled principles, but would probably lead to the perpetration of great frauds. We are, therefore, clearly of opinion that such judgments are, as already stated, absolutely void.” Life Association of America v. Fassett, 102 Ill. 315, 328. Among other cases holding to the same effect may be cited Tarleton v. Cox, 45 Miss. 430; New Orleans & C. R. Co. v. Bosworth, 8 La. Ann. 80; McCreery v. Everding, 44 Cal. 284; Lynch v. Tunnell, 4 Har. (Del.) 284; Meyer v. Hearst, 75 Ala. 390; Guyer v. Guyer, 6 Houst. (Del.) 430; Weis v. Aaron, 75 Miss. 138 (21 South. 763: 65 Am. St. Rep. 594); Kager v. Vickery, 61 Kan. 342 (59 Pac. 628: 49 L. R. A. 153: 78 Am. St. Rep. 318). Many other cases might be cited to the same effect and quite as many, perhaps more, to the contrary; but from a consideration of the rule as it existed at common law, and giving our statute a fair and reasonable construction, we do not believe that the common-law rule has been so far abrogated as to permit a trial and decree upon the merits as against a dead person, and that such decree is an absolute nullity.
*365We do not understand that decisions of this court hold the contrary. In Mitchell v. Schoonover, 16 Or. 212 (17 Pac. 867: 8 Am. St. Rep. 282), a defendant, duly served with summons, appeared and demurred to the complaint. The demurrer was overruled, and he failed to plead further. Being in default for want of answer, the plaintiff took judgment against him. He died on the same day. The judgment against him was held valid upon appeal. But in that case the defendant was in default before his death. Nothing remained to be done but to enter the judgment, which was a mere ministerial act of the clerk, flowing naturally from the default. In considering cases of this character, courts have not always been careful to distinguish between the rendition of a judgment, which is a judicial act, and the mere entry of a judgment on the record, which is a ministerial act, and from failure to make this distinction have been frequently led into the illogical and mischievous position of holding that a valid judgment could be rendered against a person not then in existence — a mere memory.
7. Technically speaking, the transcript discloses no decree in favor of proponent for costs that could in its present condition be enforced against anybody. The amount of the taxed costs nowhere appears in the decree, which adjudges that she recover “her costs and disbursements herein sustained and expended on this appeal; and the costs and disbursements for transcript on this appeal; and the costs and disbursements paid the stenographer for extending stenographic notes of the testimony of witnesses taken in the trial in the court below amounting to $-; and that she recover from respondent all her costs and disbursements in the county court sustained and expended in this cause to be taxed, and that execution issue therefor.” Such a judgment is a nullity as to costs, until they are properly taxed and entered in the judgment. Black, Judg. (2 ed.) § 118. Whatever may be the condition of the law in cases where the success of *366one plaintiff upon appeal may impose an additional burden upon a co-plaintiff, who has not joined in the appeal or been served with notice thereof, we are satisfied that in this case no such burden can be thrown upon the estate of Mrs. Phillips, and that therefore she is not an adverse party, within the meaning of our statute.
The petition is denied.
Reversed: Rehearing Denied.