Mr. Justice Adams
delivered the opinion of the court.
Before the cause was called for hearing, appellee’s counsel moved the court to strike the bill of exceptions from the record, and filed an elaborate argument in support of the motion.
Counsel for appellee contend that the sections of the practice act allowing exceptions to the decisions of trial courts do not include exceptions to matters occurring after final judgment and at a term subsequent to the term in which the judgment is rendered. This contention is erroneous. Section 59 of the practice'act is as follows :
“ If, during the progress of any trial in any civil cause, either party shall allege an exception to the opinion of the court, and reduce the same to writing, it shall be the duty of the judge to allow said exception and sign and seal the same, and the said exception shall thereupon become a part of the record of such cause.” 3 S. & C. Stat., C. 110, par. 60.
By section 66 of the practice act the writ of error coram nobis is abolished, and it is provided that errors of fact, which by the common law could have been corrected by said writ, may be corrected by the court in which the error was committed on motion in writing made at any time within five years after final judgment. Ib., parag. 67. A motion in the cause in the nature of a writ of error coram nobis being permissible by section 66, the decision of the court on such motion is a decision in the cause, and is within the meaning of secfcion'59 quoted supra.
In Peak v. Shasted, 21 Ill. 137, and Claflin v. Dunne, 129 Ill. 241, the appeals were from orders overruling motions, made after the terms at which the judgments were rendered, to set aside and vacate the judgments, because of errors of fact in the trial courts. In each case the Supreme Court reversed the order of the trial court overruling the motion to vacate. It is obvious that the Supreme Court could not have so acted in the premises in the absence of a bill of exceptions. Other cases might be cited illustrating that exceptions to the ruling of the court on a motion in the nature of a writ of error coram nobis, made at any time within five years after the .rendition of final judgment, may be preserved by bill of exceptions. In fact, such is the well established practice.
The summons issued August 5, 1S9S, returnable to the September term of the court, was the only summons served on plaintiff in error, and it appears from the affidavits and is undisputed, that at that date John Mitchell, named as plaintiff in the writ, was dead and had been dead at least five months, and also that his attorneys, Scanlan and Masters and William A. Bowles, who sued out the writ of summons, knew that Mitchell was dead as early as March 5, 1898, five months before the writ issued.
The question is, whether the issuing the summons August 5, 1898, in which John Mitchell was named as plaintiff, he having departed this life months before that date, and the rendering judgment against him, based on the service of that writ, were errors in fact remediable by writ of error coram, nobis, at common law. The errors which may be corrected by motion are, in the language of the statute, “ All errors in fact committed in the proceedings of any court of record, and which by the common law could have been corrected by said writ.” At common law an action abated on the death of the plaintiff. 2 Tidd’s Pr., Sec. 932.
Among the causes for which a judgment might be reversed at common law, by writ of error coram, nobis, Tidd mentions the following: “ Where the defendant, being under age, appeared by attorney, or the plaintiff or defendant was a married woman at the time of commencing the suit, or dead before verdict or interlocutory judgment.” 2 Tidd’s Pr. 1136-1137.
In Hurst v. Fisher, 1 Watts & S. (Penn.) 438, the plaintiff died after appearance of the defendant and before judgment. The court say: “ When a judgment in favor of or against a dead man is inadvertently rendered, the party aggrieved may be relieved by writ of error coram nobis.”
In the present case there was no plaintiff in existence when the writ was sued out, and the original plaintiff’s attorneys had no authority to sue out a' writ in his name, their authority being revoked by his death. We think there can be no question that the erroneous assumption of the court that John Mitchell was living when the writ was issued and served, was an error in fact which affected the validity of the proceedings, and which, at common law, would be sufficient to warrant the vacation of the judgment on writ of error coram nobis. In view of the language of section 66 of the practice act, this conclusion would seem sufficient to dispose of the case; but as it may be argued that, in view of our statute in regard to abatements, the suit did not abate on John Mitchell’s death, and therefore the common law rule does not apply, reference will be made to decisions in other States having statutes similar to ours in relation to abatement.
In Jarvis v. Felch, 14 Abbott’s Pr. 46, which was an action on a promissory note, the plaintiff died pending the suit, and the defendant not knowing of that fact, procured an order dismissing the suit. The court held this irregular, and granted a motion to restore the suit,' saying:
“By section 121 of the code, it is provided that no action shall abate by the death of a party, but the court, on motion, at any time within one year thereafter, or afterward, on a supplemental petition, may allow the action to be continued by the representative. The death of a sole plaintiff; although it does not, in the language of the code, ‘abate ’ the action, suspends all further proceedings until there is a revival by the personal representative of the deceased; so that no step can be taken in the further prosecution of the action until it has been continued by the order of the court.”
We think it clear that section 10 of the statute of this State in relation to abatement, which provides that in case of the death of a sole plaintiff before final judgment, if it survives to the heir, devisee or personal representative, does not contemplate that any step shall be taken in the cause after the death of the plaintiff and before the substitution as plaintiff of the person to whom the action survives. The concluding language of the section is, “ But any of such to whom the cause of action may survive may, by suggesting such death upon the record, be substituted as plaintiff, petitioner or complainant, and prosecute the same as in other cases.” The plaintiff being dead, we think it clear that there can be no further prosecution of the cause, until after the substitution permitted by the statute, the simple reason being that until such substitution is made there is no one to prosecute it.
In Reilly v. Hart, 130 N. Y. 625, it appeared that one Coggsball instituted a suit to foreclose a mortgage against Lynch and wife and others. The defendants other than Lynch and wife were personally served with process, but Lynch and wife being residents of Louisville, an order was made for service on them by publication for six weeks. Publication had been made for four weeks when Coggsball, the plaintiff in the suit, died, and the publication continued after his death for the remaining two weeks. Ho other publication was made.
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Mr. Justice Adams
delivered the opinion of the court.
Before the cause was called for hearing, appellee’s counsel moved the court to strike the bill of exceptions from the record, and filed an elaborate argument in support of the motion.
Counsel for appellee contend that the sections of the practice act allowing exceptions to the decisions of trial courts do not include exceptions to matters occurring after final judgment and at a term subsequent to the term in which the judgment is rendered. This contention is erroneous. Section 59 of the practice'act is as follows :
“ If, during the progress of any trial in any civil cause, either party shall allege an exception to the opinion of the court, and reduce the same to writing, it shall be the duty of the judge to allow said exception and sign and seal the same, and the said exception shall thereupon become a part of the record of such cause.” 3 S. & C. Stat., C. 110, par. 60.
By section 66 of the practice act the writ of error coram nobis is abolished, and it is provided that errors of fact, which by the common law could have been corrected by said writ, may be corrected by the court in which the error was committed on motion in writing made at any time within five years after final judgment. Ib., parag. 67. A motion in the cause in the nature of a writ of error coram nobis being permissible by section 66, the decision of the court on such motion is a decision in the cause, and is within the meaning of secfcion'59 quoted supra.
In Peak v. Shasted, 21 Ill. 137, and Claflin v. Dunne, 129 Ill. 241, the appeals were from orders overruling motions, made after the terms at which the judgments were rendered, to set aside and vacate the judgments, because of errors of fact in the trial courts. In each case the Supreme Court reversed the order of the trial court overruling the motion to vacate. It is obvious that the Supreme Court could not have so acted in the premises in the absence of a bill of exceptions. Other cases might be cited illustrating that exceptions to the ruling of the court on a motion in the nature of a writ of error coram nobis, made at any time within five years after the .rendition of final judgment, may be preserved by bill of exceptions. In fact, such is the well established practice.
The summons issued August 5, 1S9S, returnable to the September term of the court, was the only summons served on plaintiff in error, and it appears from the affidavits and is undisputed, that at that date John Mitchell, named as plaintiff in the writ, was dead and had been dead at least five months, and also that his attorneys, Scanlan and Masters and William A. Bowles, who sued out the writ of summons, knew that Mitchell was dead as early as March 5, 1898, five months before the writ issued.
The question is, whether the issuing the summons August 5, 1898, in which John Mitchell was named as plaintiff, he having departed this life months before that date, and the rendering judgment against him, based on the service of that writ, were errors in fact remediable by writ of error coram, nobis, at common law. The errors which may be corrected by motion are, in the language of the statute, “ All errors in fact committed in the proceedings of any court of record, and which by the common law could have been corrected by said writ.” At common law an action abated on the death of the plaintiff. 2 Tidd’s Pr., Sec. 932.
Among the causes for which a judgment might be reversed at common law, by writ of error coram, nobis, Tidd mentions the following: “ Where the defendant, being under age, appeared by attorney, or the plaintiff or defendant was a married woman at the time of commencing the suit, or dead before verdict or interlocutory judgment.” 2 Tidd’s Pr. 1136-1137.
In Hurst v. Fisher, 1 Watts & S. (Penn.) 438, the plaintiff died after appearance of the defendant and before judgment. The court say: “ When a judgment in favor of or against a dead man is inadvertently rendered, the party aggrieved may be relieved by writ of error coram nobis.”
In the present case there was no plaintiff in existence when the writ was sued out, and the original plaintiff’s attorneys had no authority to sue out a' writ in his name, their authority being revoked by his death. We think there can be no question that the erroneous assumption of the court that John Mitchell was living when the writ was issued and served, was an error in fact which affected the validity of the proceedings, and which, at common law, would be sufficient to warrant the vacation of the judgment on writ of error coram nobis. In view of the language of section 66 of the practice act, this conclusion would seem sufficient to dispose of the case; but as it may be argued that, in view of our statute in regard to abatements, the suit did not abate on John Mitchell’s death, and therefore the common law rule does not apply, reference will be made to decisions in other States having statutes similar to ours in relation to abatement.
In Jarvis v. Felch, 14 Abbott’s Pr. 46, which was an action on a promissory note, the plaintiff died pending the suit, and the defendant not knowing of that fact, procured an order dismissing the suit. The court held this irregular, and granted a motion to restore the suit,' saying:
“By section 121 of the code, it is provided that no action shall abate by the death of a party, but the court, on motion, at any time within one year thereafter, or afterward, on a supplemental petition, may allow the action to be continued by the representative. The death of a sole plaintiff; although it does not, in the language of the code, ‘abate ’ the action, suspends all further proceedings until there is a revival by the personal representative of the deceased; so that no step can be taken in the further prosecution of the action until it has been continued by the order of the court.”
We think it clear that section 10 of the statute of this State in relation to abatement, which provides that in case of the death of a sole plaintiff before final judgment, if it survives to the heir, devisee or personal representative, does not contemplate that any step shall be taken in the cause after the death of the plaintiff and before the substitution as plaintiff of the person to whom the action survives. The concluding language of the section is, “ But any of such to whom the cause of action may survive may, by suggesting such death upon the record, be substituted as plaintiff, petitioner or complainant, and prosecute the same as in other cases.” The plaintiff being dead, we think it clear that there can be no further prosecution of the cause, until after the substitution permitted by the statute, the simple reason being that until such substitution is made there is no one to prosecute it.
In Reilly v. Hart, 130 N. Y. 625, it appeared that one Coggsball instituted a suit to foreclose a mortgage against Lynch and wife and others. The defendants other than Lynch and wife were personally served with process, but Lynch and wife being residents of Louisville, an order was made for service on them by publication for six weeks. Publication had been made for four weeks when Coggsball, the plaintiff in the suit, died, and the publication continued after his death for the remaining two weeks. Ho other publication was made. Subsequently, the cause was continued by order of court in the name of the executrix of Coggsball, and the cause proceeded to a final decree foreclosing the mortgage against all defendants. The court held' that the decree did not bind Lynch and wife, for the reason that they were not served, saying :
“ It is not seen how the four weeks publication of the summons before the death, and the two weeks following, could be treated' as an effectual service upon those nonresident defendants. During the latter period there was no plaintiff, and in practical effect no action to support any proceedings within that time. The prior publication of the summons was then an unaccomplished attempt to serve it; and to constitute a service in that manner, it was necessary to publish once in each of six successive weeks in the two designated newspapers. There was, then, no service of the summons on those defendants while the action in which the order was made had any party plaintiff, and for that reason it was in a suspended condition and could not support any proceeding then taken for any purpose other than to continue it in the name of the successor as such. Before the death of the original plaintiff the court had acquired no jurisdiction of those defendants. It could not obtain any during the suspension following his death, and consequently it had no jurisdiction of them at the time the executrix became plaintiff; and it does not appear that their persons were thereafter in any manner brought in that relation to the court.”
■ In the last case the court also held that “ the effect of the death of the plaintiff was to produce a suspension of further proceedings until his successor was placed in that relation to the action.”
In Green, Adm’r, v. McMurtry, 20 Kan. 189, one Jones commenced an action against McMurtry, and after a summons and writ of attachment had issued in the suit, but before either of them was served, Jones, the plaintiff, died. The court say:
“We suppose there can be no doubt as to the invalidity of the service of said writs after Jones’ death. There must always be two parties to a lawsuit, a plaintiff and a defendant. ¡No action can exist without such parties. A plaintiff voluntarily makes himself such by commencing the action. A defendant, unless he voluntarily appears, can be made a party only by the service of a summons on him, and'until the service of the summons no action exists. The service is a jurisdictional matter. But suppose, before any defendant is created, the plaintiff dies; then can a defendant be created with no plaintiff in existence? Can there be a defendant in an action without a plaintiff ? Such a thing would seem to be absurd. When the plaintiff in a contemplated action dies, the power to-make a defendant in that action dies with him. And any attempt to make a defendant in that action, in that plaintiff's action, is futile and ridiculous.”
Counsel for defendant in error cite authorities in support of the proposition that plaintiff in error, to avail of the fact that Mitchell was dead, should have pleaded the death in abatement. We do not regard these authorities in point. The question here is whether appellee could avail of the error of fact of the court, in assuming that Mitchell was alive when the writ was issued and served, by motion in the nature of a writ of error coram nobis, and xve have no doubt on that question. Had the presiding judge known what the attorneys for defendant in error knew, that Mitchell xvas dead when the xvrit issued, the judgment in question would not have been rendered.
In Stoetzell v. Fullerton, 44 Ill. 108, a case cited by counsel for defendant in error, it was objected that in a cause in which ¡Reed and Church, plaintiffs, recovered a judgment against Fullerton, that Church died pending the suit, and the court said:
“ The error, if it be one, was an error of fact, which could only be corrected by a writ of error coram, nobis.”
In Claflin v. Dunne, 129 Ill. 241, the court quotes with approval the following from Freeman on Judgments:
“Judgments,for or against deceased persons are not generally regarded as void on that account, and while the court ought to cease to exercise its jurisdiction over a party when he dies, its failure to do so is an error to be corrected on appeal, if the fact of the death appears upon the record, or by writ of error coram, nobis, if the fact must be shown aliunde.”
Counsel, in urging that plaintiff in error should have pleaded Mitchell’s death in abatement, omit to consider that there was no valid service of process on him, and therefore he was not before the court, or bound to plead at all. The writ issued August 5, 1898, was void, the service of that writ on plaintiff in error of no legal effect, and the court was without jurisdiction, either by service or appearance, to render judgment against him. The motion to strike the bill of exceptions from the record is overruled, and the order overruling the motion of plaintiff in error to vacate the judgment rendered October 8, 1898, in favor of defendant in error and against plaintiff in error, is reversed, and the cause is remanded with directions to vacate and set aside said judgment.
Reversed and remanded with directions.