Fulton v. Nason

66 Me. 446, 1876 Me. LEXIS 166

Opinion

Appleton, C. J.

This is an action of assumpsit. During the pendency of the suit, both the plaintiff and the defendant have deceased. After 'the death of the parties had been suggested upon the docket, the administrator of the plaintiff entered his appearance, and claimed the right to further prosecute this suit.

At common law, by the death of the parties, the suit would have abated. But by R. S., c. 82, § 80, the death of a party being suggested, his executor or administrator may become a party, or be summoned in to become a party, at the instance of the opposing party, when the cause of action survives. The statute applies to plaintiff and defendant. The administrator of the plaintiff has the same right to appear after the death of a defendant, as if he were living. The death of a defendant affords no reason why the executor or administrator of the plaintiff should not become a party, and becoming a party, he may by statute summon in the executor or administrator of a deceased defendant.

The motion of the defendant’s administrator to dismiss the suit is denied. Exceptions overruled.

Walton, DiokeksoN, Ba brows, DaNEokth, VniGiN andLiBBEY, JJ., concurred.