Opinion on Rehearing by
Judge Hobson.On September 29, 1906, R. Boyd recovered a judgment against Nathan Buchanan, etc., for a tract of laud. After the entry of the judgment Boyd died; and after his death, on September 19,1908, Buchanan, etc., filed with the clerk of this court a copy of the judgment, and sued out an appeal from it before him, designating in the statement filed R. Boyd -and R. Boyd, Jr., as his executor the parties appellee.- On *436November 11, 1908, the transcript was filed. On January 4, 1909, the executor entered a motion to dismiss the appeal. The motion was overruled. See Buchanan v. Boyd’s Executor (Ky.) 115 S. W. 222. After that opinion was filed on January 29, 1909, the appellants filed an amended statement, in which they designated as appellees the devisees of R. Boyd, filing-a copy of the will and also an affidavit showing that the person designated were the devisees under the will. Process was issued against them, and they filed an answer pleading limitation. A reply was filed to the answer, and á motion was then entered to dismiss the appeal.
By section 745 of the Civil Code of Practice an appeal shall not be granted except within two years, next after the right to appeal first accrued. By section 734 of the Civil Code of Practice an appeal is granted as a matter of right by the cleik of the1 Court .of Appeals on application of either party or his privy upon filing in the office of the clerk a copy of the judgment from which he appeals. By section 739 of the Code the appellant must file with the transcript a statement showing, among other things, the names of the appellants and the names of the appellees, and by section 740 an appeal shall be docketed by the clerk until the appellant files this statement. The ground upon which the motion to dismiss is made is that the devisees of R. Boyd were not made parties to the appeal until more than two years had elapsed after the entry of the judgment, and that as to them the right of appeal is barred by the statute. In Jones’ Ex’r v. Finnell, 71 Ky. 25, it was held that,, although' an action is not commenced until a petition is filed, and a summons issued upon it in good faith, the same rule does not apply to appeals, and that an appeal is. *437taken when a copy of the judgment is filed with the clerk of this court; and the appeal is granted by him, although no summons is issued. See Brown v. Bennett, 102 Ky. 518, 44 S. W. 85; Newman on Pleadings, section 679. In this ease the statement filed by the appellant within two years after the entry of • the judgment did not designate as appellees the devisees of R. Boyd, Sr.; and it is insisted that this distinguishes the case before us from' those heretofore decided. But it will be observed that by section 740 the penalty for failure to file the statement is not the dismissal of the appeal, but the denial of the right to have it placed upon the docket. When, after the recovery of the judgment, R. Boyd died, no further steps could be taken in the action or upon the judgment without a revivor. By section 767 of the Code the provisions of title 11, governing revivor, shall so far as applicable regulate cases in the Court of Appeals. By title 11, when a party dies before further proceedings can be taken, ordinarily the action must be revived against his real or personal representatives according to the nature of the action, and in real .actions the revivor must be made within one year from the time it might first be done. As the action had been tried out in the circuit court, the proper way for the defendants to bring the case to this court was to file a copy of the judgment and have the appeal granted, and within one year after that time it was incumbent upon them to revive the action against the real representatives of the deceased plaintiff, for the defendants had the right to take the appeal within two years, and the revivor in this court could not be made until after the appeal was taken; and by the provisions of section 509 should have been taken within one year from the time the order might have *438been first made. The suggestion of the death of R. Boyd, the filing of a copy of his will with the statement of the names of his devises, and the taking out of process against them was a revivor of the action against them in this court, and this having been done within one year after the granting of the appeal was in time. Were the rule otherwise, great injustice might be done the appellant in this class of cases; for, if the appellee died just before the two years expired, he might not learn before taking his appeal of the names of some of the heirs; and if it was held that he could not amend 'his statement, and bring these persons in, his right of appeal would be lost as to them. To guard against this injustice, the Code allows one year for persons to ascertain the .facts and revive the action against the necessary parties: We therefore conclude that the appeal is not barred by limitation.
A rehearing is therefore granted. The order dismissing the appeal is set aside, and the motion to dismiss the appeal is overruled.