This action is brought for a libel on a firm in regard to their business. The plaintiffs recovered a judgment in this court, and while an appeal was pending to the court of appeals, John C. Taylor, one of the plaintiffs, died. A suggestion of the death was made upon the record, and the case was heard before that court. The judgment was afterward reversed, and a new trial ordered. The defendant now moves for an order to strike the cause from the calendar, because the plaintiffs have not obtained an order, under the 12lst
Upon a careful examination of the 121st section, I can see nothing which conflicts with the practice adopted in this case, of making a suggestion on the record, and proceeding in the cause. This is not a case in which the action is to be continued either by the representatives or successors of the deceased party. The present plaintiffs were the plaintiffs originally. By the death of one of their number, their right to continue the prosecution, if the right of action continues, is unaffected. No leave is necessary, because no one is to be substituted in the place of the deceased. The only thing necessary is to inform the court why the name of Taylor is omitted as plaintiff. This has been done by suggestion, as provided by the R. S. 2 vol. p. 386, sec. 1.
The provisions in the Code apply rather to the case mentioned in the 2d and 3d sections of the same chapter in R. S., and substitute a motion for the remedy therein provided by Scire Facias;
In Williamson agt. Moore, (5 Sand. S. C. R., p. 647,) the
In the case of the death of one member of a firm, the cause of action continues. In such case the death does not abate the action. Under the provisions of the Revised Statutes, as well as the first part of the 121st section of the Code, the cause of action does not go to the representatives or successors of the deceased, but remains or continues in the remaining plaintiffs, and there is no representative or successor to be made a party under the latter part of the 121st section. As it is only in the case of a representative or successor that a motion is proper under that section, it cannot apply to this case or affect the provisions of the Revised Statutes, which are directly applicable.
The motion to strike the cause from the calendar is denied, without costs.