(dissenting): I dissent from 2 (2) of the syllabus and the corresponding portion of the opinion. I agree with the conclusion reached by the majority that the trial court erred in not reviving the action, but for reasons additional to those asserted in the opinion.
The action had been properly instituted in the district court, which had jurisdiction of the subject matter and the person of the defendant. It was at issue. As far as the record discloses the only thing that prevented it from coming to trial in the district court was *278the death of the defendant. In my opinion, the situation is controlled by the code of civil procedure. I do not think the sections of the probate code discussed in the opinion were intended to amend these sections.
Upon the death of defendant, this was the sort of action which survived. (See G. S. 1935, 60-3201.) G. S. 1935, 60-3202, provides that no actions pending in any court shall abate by the death of either party thereto except certain actions, in which categories the instant case does not fall. G. S. 1935, 60-3207, provides that actions of the sort that are subject to revivor shall proceed in the name of the new parties. The plaintiff was entitled to move to have the action tried to final judgment in the district court. I have examined Egnatic v. Wollard, 156 Kan. 843, 137 P. 2d 188. In my opinion the holding in that case does not require us to hold in this case that the action must be tried in the probate court.
Thiele and Wertz, JJ., concur in the foregoing dissenting opinion.