Coggins v. Elythe

114 N.C. 274

• Court: Supreme Court of North Carolina
• Decided: February 15, 1894
• Status: Published

Opinion

MacRak, J.:

The action did not abate upon the death of the two plaintiffs, Thomas C. and Martha A. Harris. The cause remained upon the docket and was proceeded with at the instance of the surviving plaintiffs, whose rights have now been determined. There being no personal representative of the deceased plaintiffs, no motion was made within a year after their death to continue the action as to them. It was within the power of the defendants at any time after their death to have applied to the Court to have the action abated as to them unless proper parties were brought in, but as this was not done it was entirely within the discretion of the presiding Judge to allow their representative to file a supplementary complaint and prosecute the action upon his motion to that effect, made before the final determination of the cause. The Code, §188; Baggarly v. Calvert, 70 N. C., 688; Moore v. Railroad, 74 N. C., 528. Affirmed.