West v. Biggs, 26 Ill. 533 (1862)

Jan. 1862 · Illinois Supreme Court

26 Ill. 533

John B. West, Plaintiff in Error, v. William H. Biggs, Defendant in Error.

ERROR TO MACON.

There must be ten days’ notice, in writing, with proof, before the court will grant a rule to join in error, of the intention to revive a suit by the representative of a deceased plaintiff in error. If the party defending is a non-resident, there must be publication, as in other cases.

The death of the plaintiff in error was suggested, and his administrator was substituted as the party to the record. A motion was thereupon made for a rule, that the defendant should join in error.

F. S. Murphy, for the motion.

Per Curiam.

On the. suggestion of the death of a plaintiff in error or appellant, and a revival of the suit in the name of the representative of the deceased party, there must be ten days’ notice given of such revival to the opposite party, before a rule will be granted to compel a joinder in error.

The notice of the intention to revive, or of the revival, may be given before or during the term. ■ Until notice is served, the party defending cannot know whether. any steps will be taken in the cause, and, consequently, need not be prepared with his defense.

The notice in such a case should be in writing, and proof of service must be furnished to the court. If the party defending' is a non-resident, then there must be notice given him by publication, as in other cases of non-residents, with proof of that fact; or a rule to join in error will not be granted..

Motion denied.

V