In their petition for a rehearing, counsel for appellant complain that the real grounds of their appeal have not been considered in the opinion affirming the judgment.
The two propositions to which their argument was addressed may be stated as follows: 1. That the court never *Page 456 having acquired jurisdiction of Nellie Ryan, and she having died more than a year after the commencement of the action, it had become legally impossible for the court to acquire jurisdiction of her executrix; and if so, 2. That her executrix had no right or authority, by a voluntary appearance in the action, to revive against the estate a claim legally extinct.
It is true that these propositions are not met by the Department opinion, but I think the first — which is essential to the appellant's case — is unsound. If the action did not abate on the death of Nellie Ryan, as clearly it did not (Code Civ. Proc., sec. 385), the power expressly conferred upon the court to continue the proceeding against her personal representative carried with it an implied power to order a new summons to bring in the new party. If this is a correct view of the first proposition, the second need not be considered.
I concur in the order denying a rehearing.