Liming v. Nesbitt

66 Ind. 602

Opinion

Perkins, J.

This is a motion by'the appellees, to dismiss L,e appeal and strike the cause from the docket. The judgment appealed from was rendered in March, 1877.

The appeal was taken and filed March 14th, 1878. Errors wore assigned at the May term, 1878. The motion to dismiss was made on the 27th of November, 1878, and was supported by the affidavit of appellees, that Thomas E. Liming, whose name appears as the appellant, departed this life on the 18th day of August, 1S77, seven months before the appeal was taken. The name of no executor or administrator has been substituted, if such substitution could he made. The death of Liming, as alleged in the affidavit of Nes-. bitt, is not controverted. Upon the authority of the case of Taylor v. Elliott, 53 Ind. 441, the motion to strike from the docket must he sustained. The appeal should have been taken under section 552, 2 B. S. 1870, p. 240. This section contains a misprint of no for an.

Motion sustained.