Fleming v. Copeland

THOMAS, J. Appellee submitted on motion to dismiss the appeal. The record shows that a motion to revive was filed in the chancery court on December 22,1916. The motion averred the death of W. A. Copeland on November 27, 1916; that petitioner was the widow of'said decedent; that all of the personal property of the decedent was exempt to her, the widow, and decedent’s minor children; that petitioner was entitled to the custody and possession of the same, and had the right to prosecute, in her name, the suit of W. A. Copeland v. W. E. Fleming, theretofore pending in the chancery court of Pike county, as provided by sections 4202 and 4203 of the Code — and prayed for an appropriate order of revivor of said suit in her name. Notice thereupon issued to W. E. Fleming or his attorney of record that said petition would be heard before the chancellor on the 10th day of January, 1917, at Tuskegee, Ala., concluding, “At which time and place you will appear and contest the same as you may see proper.” This notice was dated January 5, 1917. [1] The order granting the revivor was prematurely made by the chancellor on January 8, 1917, before the date in the notice indicated for the hearing. The said Fleming was not concluded by such order or decree. On this appeal his counsel says: “The order issued by the chancellor January 8, 1917, reviving this cause in the name of Smithie Copeland, was error, for that the same was issued before the time to hear the same. Transcript, p. 63. This cannot be said to be error without injury.” Thd third assignment of error challenges the correctness of the premature decree of revivor without notice of the hearing. [2] The facts remain, however, that at the time of the attempted perfection of the appeal to this court the said W. A. Copeland *532 was dead, and that without a revivor no binding judgment could be rendered in the cause. Gill v. More, 76 South. 453 ; 1 Whitlow v. Echols, 78 Ala. 206, 210; Johnson v. Johnson, 40 Ala. 247, 253; Elsassor v. Haines, 52 N. J. Law, 10, 18 Atl. 1095. The record does not show that petitioner, Smithie Copeland, said widow of W. A. Copeland, ever became a party to the record by order of this court, or that she submitted herself to the jurisdiction thereof. Weller & Sons v. Rensford, 164 Ala. 312, 51 South. 344. [3] The appeal not having been perfected (Code, § 2853; Morrow v. Taggart, 45 Ala. 293), the motion is granted, and the appeal is dismissed. Appeal dismissed. ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur. Footnotes [1] Ante, p. 511.