Carson v. McFadden

The only question in this case is whether *92an action to recover damages for a libel alleged to bare been composed and published by defendant, of and concerning the plaintiff, abates by reason of defendant’s death, pending the action.

We are of opinion that it does not, and that the action may be continued against the administrator. The common law rule in actions of tort has been so far changed by the Code, that the remedy does not determine with the life of the wrong doer, if from the nature or necessity of the case the cause of action can continue. Code, sections 1698, 2502. The court on motion may allow the action to bo continued against the personal representative. Ib. 1699, 2502. There is nothing in this instance in the nature of the case, which should prevent the action being continued against the administrator, and the District Court should have allowed the motion of plaintiff accordingly. All that stood in the way of such substitution and continuance was the common law rule against it, which we have no doubt it was the intention of the legislature to abolish — section 2502.

Judgment reversed.