Bissell v. City of Lavaca

6 Tex. 54

Opinion

Lipscomb, J.

The suggestion of the death of the plaintiff by the counsel who represented him in the suit, and the suggestion not being traversed by the defendant, the common-law effect would have been an abatement of the suit. By our statute it could have been revived in the name of his representatives, and tlie usual order is to continue for tho purpose of making parties. If, however, parties should not be made, the suit abates, because it cannot be conducted without parties. The judgment rendered in this ease before parties had been made is a nullity, as were all the proceedings subsequent to the suggestion oí the plaintiff’s death. The appeal is therefore dismissed.

Note 9. — By analogy with this caso it was held that where a case is remanded by tho Supreme Court for a new trial, and an appeal is taken after the second trial, tho liignscript should contain the mandate, otherwise the proceedings subsequent to tho first judgment would appear to be without authority. (McAlpin v. Bennet, 21 T., 535.)

Ordered accordingly.