Coggins v. Elythe

Supreme Court of North Carolina February 15, 1894

Coggins v. Elythe, 114 N.C. 274 (N.C. 1894)

MacRak

Opinion of the Court

MacRak, J.:

The action did not abate upon the death of the two plaintiffs, Thomas C. and Martha A. Harris. The *277cause remained upon the docket and was proceeded with at the instance of the surviving plaintiffs, whose rights have now been determined. There being no personal representative of the deceased plaintiffs, no motion was made within a year after their death to continue the action as to them. It was within the power of the defendants at any time after their death to have applied to the Court to have the action abated as to them unless proper parties were brought in, but as this was not done it was entirely within the discretion of the presiding Judge to allow their representative to file a supplementary complaint and prosecute the action upon his motion to that effect, made before the final determination of the cause. The Code, §188; Baggarly v. Calvert, 70 N. C., 688; Moore v. Railroad, 74 N. C., 528. Affirmed.

Reference

Full Case Name: STATE ex rel. MARY COGGINS v. J. T. ELYTHE
Status: Published
Syllabus: Practice — Parties—Abatement—Supplementary Complaint•— Discretion of Judge. Where two of several plaintiffs died and, there being no personal representative within a year thereafter, no motion was made to continue the action as to them, but the cause remained upon the docket and was proceeded with by the remaining plaintiffs, whose rights were finally determined, and the defendants did not apply to have the action abated as to the deceased parties, it was within the discretion of the presiding Judge to allow' the personal representative of such deceased parties to file a supplementary complaint and prosecute the action, his motion to be allowed to do so -having been made before the final judgment was rendered in the cause.