Dick v. Kendall

6 Or. 166

• Court: Oregon Supreme Court
• Decided: December 15, 1876
• Status: Published

Opinion

By the Court, Shattuck, J.:

1. That the suit is to be deemed pending in the circuit court until an appeal is perfected, or until the period for taking an appeal has expired. (Civ. Code, 213, sec. 505.)

2. That the alleged service of notice of appeal and filing the same with an undertaking for appeal, by the representatives of the deceased plaintiff, before any order under section 37 of the civil code, allowing the suit to be continued by such representatives and heirs, did not operate to give the court jurisdiction of the cause.

3. That the representatives or successors in interest of a deceased party have one year after the death of the party to apply for leave' to continue the suit; and the application to the proper court, by proper petition and proofs of service of notice, is in time, if made within one year, although the court may not in fact make the order allowing the motion until after the expiration of the year.

4. That the suit is suspended during the period between the death and the order allowing the representatives to continue the suit, and that this period is not to be deemed any part of the time limited for taking an appeal.