Atchison, T. & S. F. Ry. Co. v. Fenton

Opinion by ROBERTSON, C. .This appeal was filed in this court on April 18, 1910. The defendant in error, George S. Fen-ton, died September 10, 1910. No effort to revive has been made by his heirs or by any one else within the year, and his heirs and successors now refuse to consent to a revivor, but, on the contrary, filed a motion on March 1, 1912, to dismiss the proceedings in error. Section 5957, Comp. Laws 1909, reads as follows: “An order to revive an action against the representatives or successors of a defendant shall not be made without the consent of such representatives or successor, unless in one year from the time it could have been first made.” This section of the Code is identical with section 6025, Dass-ler’s General Statutes of Kansas 1909 (Code Civ. Proc. sec. 430; *615 Code 1901, sec. 433), which had been construed by the Supreme Court of Kansas prior to the adoption thereof by us, and in Tibbetts v. Deck, 41 Kan. 492, 21 Pac. 586, the Supreme Court' of Kansas, in passing on this question, said: “Under the Civil Code, sec. 433, providing that an order to revive an action against the representatives or successors of a defendant against their consent cannot be made, except within one year from the time it could have been first made, a proceeding-in error will be dismissed on motion, where defendant in error died pending the proceeding, and the action has not been revived within a year, and the successor of deceased refuse to consent to a revivor.” While in Steinbach v. Murphy, 70 Kan. 487, 78 Pac. 823, it is said: “Without a revivor an action abates upon the death of a party and without a statute there can be no revivor.” After setting out the section of the statute above quoted, the opinion continues: “This language is peremptory. It imposes an absolute prohibition upon the granting of an order after the lapse of a year from the time when it first could have been made. The right, by the terms of its creation, can endure but a year. The time element is an essential constituent of the right. When the year has expired, there is no longer any right, and the status of the case is then the same as if there were no revivor statute. * * * A party seeking its benefit must bring himself strictly within its terms.” It therefore follows that the motion to dismiss the appeal should be sustained. By the Court: It is so ordered.