« PreviousContinue »
found,” publication may be substituted therefor in all cases in which proceeding by publication is authorized by this code.
Sec. 237. SUMMONS TO EXECUTOR, AND SO FORTH.If Welchv. Lynch, [the] any plaintiff in any such action shall die before 122, 137. judgment is given, the heir, devisee, executor, adminis- Welch o. Lynch,
; trator, or other proper person to prosecute such action 35 L. R., 398; 1b., may appear and prosecute the same; and if such person does not appear to prosecute such action during the term of said court in which the death may be suggested, the defendant may cause a summons to be issued, directed to the proper person to prosecute such action, requiring him to appear and prosecute the same on or before the twentieth day, exclusive of Sundays and legal holidays, occurring after service of the same; and if it shall appear to the court that such summons has been duly served, and the party summoned shall fail to appear in obedience thereto to prosecute the action, or if said party be not found in the District of Columbia and shall not appear to prosecute such action by the fourth day of the second term of the court after the term at which the death is suggested, the action shall abate or the cause may proceed to judgment notwithstanding such failure to appear, as the defendant may elect; but if the proper person to prosecute such action shall appear therein, either voluntarily or after being summoned as aforesaid, before said suit shall so abate, all proceedings in the action had before the death of the plaintiff shall be considered as proceedings in the cause, and such other proceedings shall be had to bring the cause fairly to trial as the court may deem proper. (32 Stat., 528.)
Sec. 238. DEATH OF NEW PARTY.-In all cases where a new party has been made to any action under the provisions aforesaid, and the new party so made shall die before judgment, or if an executor or administrator shall be removed from his office, the proper person to prosecute or defend such action in the place of the party so dying or removed may be made a party thereto by the same proceeding herein authorized on the death of the original plaintiff or defendant.
Sec. 239. PLEADINGS.— Any new party to any action may use and rely upon any pleadings put in by his predecessor in such action, or shall have the same right to amend the pleadings or proceedings in such action as if he had been an original party thereto.
Sec. 240. Costs.-In all cases where a new party is made to an action the costs which accrued before such new party was made shall be taxed as part of the costs in such action, and the judgment rendered shall be the same as if the action had been originally commenced between the persons who are parties to such action: Provided, That no defendant who is made a new party to such action shall be burdened with debts, damages, or costs beyond the amount of property or assets descended or come to his hands from the deceased.
Sec. 241. JOINT PARTIES.-In case of the death of one of several joint defendants to an action, where the right of action will survive as aforesaid, the same proceedings shall be had to make the proper representative of the deceased a party to the action as in the case of a sole defendant.
Sec. 242. APPEALS FROM JUSTICES OF THE PEACE.—An appeal from a judgment rendered by any justice of the peace shall be deemed an action within the meaning of the aforegoing provisions.
Sec: 243. EQUITY SUITS.—No suit in equity shall abate by the death of any of the parties in cases where the rights involved in the suit survive. Sec. 244. DEATH OF PARTY TO EQUITY SUIT.
of the parties to a suit in equity, whether complainant or defendant, shall die after the filing of the bill or petition, it shall not be necessary to file a bill of revivor; but any of the surviving parties may file a suggestion of such death, setting forth when the death occurred, and who is the legal representative of such deceased party, and how he is the representative, whether by devise, descent, or otherwise.
Sec. 245. SUBPENA TO REPRESENTATIVES.–Upon such a suggestion a subpæna shall issue for the legal representative of the deceased party, commanding him to appear and be made a party to such suit, if such representative reside within the District of Columbia; and if such representative is a nonresident, then such notice shall be given instead of the subpæna as is herein elsewhere provided for nonresident defendants.
Sec. 246. DEATH AFTER DECREE FOR ACCOUNT, AND SO FORTH.—If any defendant shall die after a decree for an account, sale, or partition, or after such other proceedings shall have been had after appearance as would have warranted the passing of such a decree, or if such deceased defendant shall have answered, confessing the facts stated in the bill, or shall have set up no defense to the relief therein prayed, the court may, in its discretion, order the cause to be proceeded in as if no death had occurred, or may order a bill of revivor or a supplemental bill to be filed, and the proper representative of such deceased defendant to be made a party, as may seem best calculated to advance the purposes of justice: Provided, That the heir or other proper representative of such deceased defendant, at any time before final decree, may appear and be made a party on such reasonable terms as the court may.
direct; and such new party may file an answer to the original bill, subject to such terms as the court may impose, in which he may insist on such defenses, and none other, as might have been made to a bill of revivor or supplemental bill in the nature of a bill of revivor filed against him.
Sec. 247. MARRIAGE OF PARTY.—No suit at law or in equity shall abate by the marriage of any of the parties;
but on application of any of the parties the court may, such terms and notice as it shall deem proper, allow and order any amendment in the pleadings and the making of any new or additional parties that such marriage may render necessary or proper.
Sec. 248. DEATH AFTER FINAL DECREE.—If any of the parties to a suit die after final decree, the court may order execution of such decree as if no death had occurred, or the court may order a subpæna scire facias to be issued, or a bill of revivor to be filed against the proper representatives of such deceased party, or pass such other order or direct such other proceedings as may seem best calculated to advance the purposes of justice: Provided, That the heir or other proper representative may appear at any time before execution of said decree and be admitted as a party to the suit, on such terms as the court may prescribe, and such further proceeding may be had as may be appropriate to the merits of the cause.
Sec. 249. FAILURE TO APPEAR.-If any representative of a deceased party shall fail to appear, after being summoned, within the time therein limited, or shall fail to appear after notice by publication, the court may order the appearance of such representative to be entered, to have the same effect as if such representative had appeared in person and been made a party.
Sec. 250. EVASION OF SERVICE OF PROCESS.-In all cases where any representative of a deceased party to a suit shall evade any process issued against him, or shall leave the District before any such process can be served on him, he may be proceeded against as a nonresident defendant.
Sec. 251. BILL OF REVIVOR.—A bill of revivor or supplemental bill in the nature of a bill of revivor may be filed, instead of a suggestion of the death of a party, and notice thereof shall be given to the defendant by subpona or the service of a copy of such bill, if he be found within the District, as the court may direct; or, if the party be a nonresident or secrete himself or evade the service of the summons, or if his residence be unknown, then notice by publication may be given as against nonresident defendants.
ABSENCE FOR SEVEN YEARS.
9 D. C. App., Sec. 252. PRESUMPTION OF DEATH.-If any person 48; 24 D. C. App., 127; 10 D. c. shall leave his domicile without any known intention of App., 496; 198 U. 8., 458.
changing the same, and shall not return or be heard from for seven years from the time of his so leaving, he shall be presumed to be dead, in any case wherein his death shall come in question, unless proof be made that he was alive within that time.
Sec. 253. PERSON FOUND LIVING.-If the person so presumed to be dead be found to have been living, any person injured by such presumption shall be restored to the rights of which he shall have been deprived by reason of such presumption.
Sec. 254. AUDITOR'S REPORT EXCEPTIONS.-In Crafton 0.
Payne, 7 D. C. actions at common law grounded upon an account, or in App., 255; 12 D. which it may be necessary to examine and determine D. Papper"161
; upon accounts between the parties, the court, in its 13 D... App: discretion, at any stage of the cause, may order the App., 344; 29. D. accounts and dealings between the parties to be audited D. Papp., 2007 and stated by the auditor of the court or by a special 28.D... APP: auditor to be appointed by the court for the purpose; in App., 36. which case, if a jury shall have been sworn, they shall be discharged. The course of proceedings before the auditor shall be the same as in cases in equity referred to him. When his audit is completed the auditor shall file his report and account in the clerk's office and give notice thereof to the parties or their attorneys, and at the expiration of thirty days after said notice judgment may be entered, on motion of either party, in accordance with said report and account, unless exceptions are filed thereto for errors in law or fact therein. The party excepting thereto shall point out particularly the item or items in such report and account excepted to, and state the grounds of such exception, and annex to his exceptions a certificate of counsel that, in his opinion, the matters of law therein stated are well founded in law, and an affidavit of such party that the exceptions are not filed for delay, and that the allegations of fact in said exceptions are true to the best of his knowledge and belief, and a copy of said exceptions shall be served on the opposite party or his attorney.
Sec. 255. TRIAL OF EXCEPTIONS.—When such excep- van haken,75 : tions are filed, the court shall enter the cause on the trial c. App., 209; 21 calendar of the term in which they are filed in its proper place, and the issues made by said exceptions shall be tried and determined in the same manner as other issues of law or fact made by the pleadings in an action at common law, and any part of such report and account not so excepted to shall be adjudged to be conclusive between the parties on such trial.
Sec. 256. DIRECTIONS TO JURY.—If, in the opinion of the court, such issues are so numerous as to create confusion the court may, in its discretion, direct evidence to be received and considered by the jury as to a part of said issues, and direct the jury to retire and conclude as to the same before hearing the evidence as to the other issues, and this to repeat as often as may be neces
D. C. App., 344.