Cole v. Alexander

Lake County Circuit Court

Cole v. Alexander

1 Ohio Cir. Dec. 327

DecidedSeptember 15, 1886

StatusPublished

This text of 1 Ohio Cir. Dec. 327 (Cole v. Alexander) is published on Counsel Stack Legal Research, covering Lake County Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cole v. Alexander, 1 Ohio Cir. Dec. 327 (Ohio Super. Ct. 1886).

Pincite

Opinion

Eaubie, J.

C. C. Field, one of the plaintiffs in error, has recently deceased. Counsel for plaintiffs in error state that no executor was named in his will, and. that no administrator has yet been appointed. This is conceded by counsel for defendant in error to be true.

The death of said C. C. Field is suggested, and motion made to continue the case, so that an administrator can be appointed and made party to this proceeding.

This is a proceeding in error, and one of plaintiffs in error has died since error was- assigned-, and the common law rule is that the death of a parti* plaintiff, after error has been assigned, will not interfere with the writ of error. This rule is followed in the third Ohio. In Williams v. Englebrecht, 88 O. S., 96, the court held that: “Notwithstanding the death of the plaintiff in error, after assignment of errors, and before final judgment, the judgment of reversal is valid and effective,” and the cause was reversed and remanded. In case of a reversal, the original action can be revived in the court to which it is remanded in the name of the proper representative of the deceased party.

The motion to continue is therefore overruled.

Free access — add to your briefcase to read the full text and ask questions with AI

Eaubie, J.

C. C. Field, one of the plaintiffs in error, has recently deceased. Counsel for plaintiffs in error state that no executor was named in his will, and. that no administrator has yet been appointed. This is conceded by counsel for defendant in error to be true.

The death of said C. C. Field is suggested, and motion made to continue the case, so that an administrator can be appointed and made party to this proceeding.

This is a proceeding in error, and one of plaintiffs in error has died since error was- assigned-, and the common law rule is that the death of a parti* plaintiff, after error has been assigned, will not interfere with the writ of error. This rule is followed in the third Ohio. In Williams v. Englebrecht, 88 O. S., 96, the court held that: “Notwithstanding the death of the plaintiff in error, after assignment of errors, and before final judgment, the judgment of reversal is valid and effective,” and the cause was reversed and remanded. In case of a reversal, the original action can be revived in the court to which it is remanded in the name of the proper representative of the deceased party.

The motion to continue is therefore overruled.

Cite This Page — Counsel Stack

Bluebook (online)

1 Ohio Cir. Dec. 327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cole-v-alexander-ohcirctlake-1886.