delivered the opinion of the court.
During the progress of this suit the counsel of the intervening party and appellant suggested the death of the plaintiff, and on his motion the court appointed a curator to the heirs of the deceased. The court then pro- [42] ceeded to judgment and decreed that the plaintiff, McManus, recover from the defendant the amount of the note sued on, and that the property whioh had been attached be sold to satisfy the same; and dismissed the petition of intervention. The intervenor alone appealed, and cited both plaintiff and defendant.
As the plaintiff’s death was suggested, and not denied, it must be taken as true. It however does not justify the appointment of a curator to his heirs. If they were within the State, no curator could he appointed to them; and if absent, the court of probates possesses the exclusive power to make the appointment. Code of Practice, art. 924, Mo. 4. The appointment being irregular, all the posterior proceedings contradictorily with him are equally so.
It is therefore ordered, adjudged and decreed, that the judgment of the commercial court he annulled, avoided and reversed; the appointment of the curator be set aside, and the case remanded for further proceedings, commencing in the situation it was at the time the suggestion of plaintiff’s death was made. The plaintiff and appellee paying the costs of the appeal.