Respondents Schiffer, Geo. G. and Lilly Thiessen, through their counsel, have filed a petition for rehearing accompanied by a garrulous and impertinent brief distinguished chiefly for its reckless innuendo. Ordinary regard for the amenities of the profession should inspire *Page 690 upon the part of losing counsel, the assumption that errors of the court, if errors there be, are due solely to defective ratiocination and not to flagrant disregard of published statutes and decisions in order to attain the result desired. While in nowise minimizing this reprehensible conduct of counsel, we are inclined to view their hysterical effervescence with less of indignation than regret, and content ourselves with striking the offensive effusion from the files.
There has also been filed by evidently misled amici curiae a brief, the objectionable tone of which identifies it as an anticlimatic harangue of respondents' counsel, doubtless never read or digested, if read at all, by the signers. The discussion arises from a probably justified apprehension that in its former opinion the court sought to lay down as a general rule that: "It is not necessary that an acting administrator be substituted in order to carry on litigation affecting the property of the deceased." The language, while not so intended, is susceptible to the construction that in no instance is it necessary that an administrator be substituted. Such was never in the court's mind. It is elementary that an adverse party can secure no rights as against the decedent's representatives or heirs until the latter become parties to the suit. Having in mind the instant case, what the court sought to say, and now does say, is that a court order of substitution is not necessary to enable an administrator to carry on his intestate's litigation by appeal. An examination of the cases cited will clearly show what the writer had in contemplation when he employed the verbiage evidently provocative of this tempest in a teapot.
As a general proposition, it is erroneous to hold that an administrator can become a party only through a substitution by court order. Beginning with the Statute of 8 and 9 William III, governing abatements and revivals, he could be made a party either by a proceeding in scire facias or by voluntary appearance. This practice has been directly recognized in many of the common-law states of to-day *Page 691 where the writ of scire facias has not been superseded by abatement and revival statutes. A typical application of the rule will be found in Murphy v. Redmond, 46 Mo. 319, where an appeal was dismissed for the reason that there was no plaintiff in court "either by voluntary appearance of the deceased's representatives, or upon scire facias." In California, where the writ has been superseded by a statute almost identical with our own C. S., sec. 6652, authorizing the continuance of actions after the death of a party, the court recognizes the same rule. (Bell v. San Francisco Savings Union, 153 Cal. 64,94 P. 225.)
But the right of a nonsubstituted or nonappearing administrator to appeal is not governed by C. S., sec. 6652. His right derives exclusively from C. S., sec, 7151, providing that any party aggrieved may appeal. The term "party aggrieved" has both by this court and the court of California been defined as any person injuriously affected by the judgment, irrespective of whether or not he be named as plaintiff, defendant or intervenor. He has to be named neither in the caption, pleadings nor judgment. (State v. Eves, 6 Idaho 144,53 P. 543; Washington County Abstract Co. v. Stewart, 9 Idaho 376,74 P. 955; Adams v. Wood, 8 Cal. 306; Schino v.Cinquini, 7 Cal. App. 244, 94 P. 83; Estate of Colton,164 Cal. 1, 127 P. 643.)
The test is: Would the party have had the thing or right in controversy, if the erroneous judgment had not been given? (Adams v. Wood, supra.)
If the administrator had no interest in the subject matter, necessarily he could not be a "party aggrieved" by a judgment against his intestate. But he does have an interest. When appointed and qualified, all rights and interests of the decedent's litigation vest in him and he becomes the real party in interest. (Whartenby v. Reay, 92 Cal. 74, 28 P. 56.)
In the case at bar, the administratrix voluntarily appeared by filing her notice of appeal on October 13, 1925. On October 26th, following, and before the motion to dismiss *Page 692 her appeal was filed, she was formally substituted by order of the district court. If any further authority for sustaining her appeal were required it is supplied by Whartenby v. Reay,supra. In that case plaintiff had died. His attorney of record moved to dismiss defendant's appeal. At the time the notice of the motion was given, executors of deceased's estate had been appointed and qualified, employing the attorney of record, but they had not been substituted at the time the motion was noticed for hearing. Appellant objected to the motion, contending that, the executors not having been substituted, the attorney who signed and filed the motion had no authority to act in the matter. Overruling this objection and speaking of the executors, the court said "they were the real parties in interest, and the fact that the order of this substitution proforma as plaintiff had not been made in this court at that time (and which was made upon the hearing of the motion) is not sufficient to deprive the executors' attorney of the authority to make the motion."
Touching the appeal on its merits, respondents insist that there is sufficient evidence in the record to support the court's finding that the plaintiff, John Oatman, knew the nature of the instrument he signed. Granting this to be true, which we do not, it can avail respondents nothing. The land involved came to plaintiffs by United States patent. Under the law of this state, it was community property; and respondents admit it to be such. There is no word in the record indicating, much less proving, that plaintiff's wife, Mary Oatman, ever understood the nature or contents of the paper she is alleged to have signed. Her illiteracy having been shown, the burden, as stated in the former opinion, was upon respondents to show she knew what she was doing; and they did not discharge it. The husband was powerless to convey the property without his wife's concurrence; and an unconscious concurrence is no concurrence.
The petition for rehearing is denied. *Page 693
Appellants have likewise petitioned for a rehearing of their appeal from the order of the lower court vacating and setting aside the sale of September 15, 1925, and directing a now one. They contend that since the court has reversed the original judgment, they should recover costs on their appeal from the order, notwithstanding such appeal has been decided adversely to them. They further call attention to the fact that in pursuance of the order appealed from, a second sale has been had at which the defendant and cross-complainant, Schiffer, has become the purchaser of the property concerned in this action.
Appellants are of right entitled to a restitution of the premises at the hands of Schiffer; and the district court is directed to make an order to that effect.
The appeal from the order having been without merit, appellants are not entitled to costs.
Wm. E. Lee, C.J., and Taylor, J., concur.
Budge and Givens, JJ., concur in the conclusion reached.