Commonwealth v. Dunn

57 Pa. Super. 162, 1914 Pa. Super. LEXIS 170

• Court: Superior Court of Pennsylvania
• Decided: May 14, 1914
• Docket: Appeal, No. 144
• Status: Published

Opinion

Opinion bt

Rice, P. J.,

.When this appeal was reached for argument the gentlemen who were attorneys for the appellant in his lifetime, filed a suggestion, verified by affidavit, that he died on April 10, 1914, and thereupon moved the court to direct that the appeal abate, that the sureties upon the bonds for appeal and supersedeas be discharged from liability, that the estate of the said deceased appellant, if any he has, be discharged from the fine imposed upon him and from the costs of prosecution in the court below, and that all bonds upon appeal and supersedeas be surrendered for' cancellation. The fact of the appellant’s death was tacitly admitted by counsel for the commonwealth. A similar question arose in Com. v. Crowley, 28 Pa. Superior Ct. 618, and we held there that under such circumstances the appeal abates and nothing remains for the appellate court to do but to make the formal order to that effect. See List v. Pennsylvania, 131 U. S. 396; O’Sullivan v. People, 144 Ill. 604; Herrington v. State, 53 Ga. 552; Hardin v. State, 36 S. W. Repr. 82; State v. Perrine, 56 Mo. 602; State v. Martin, 30 Oregon, 108; Pustiofsky v. State, 28 S. W. Repr. 947.

After reconsideration of the question and re-examination of the above and other cases bearing upon it, we are all of opinion that the foregoing conclusion is sustained by principle, and also by the best-considered precedents in jurisdictions where there is no statute governing the subject. The question as to the effect of the death of the appellant and the consequent abatement of the appeal is elaborately discussed in O’Sullivan v. People, 144 Ill. 604, and State v. Martin, 30 Ore. 108.

Now May 14, 1914, it having been made known to the court that James Dunn, the appellant, died on April 10, 1914, the appeal is abated.