the statute of 8 and 9 W. III. Section 6, chapter 11, of that act, provided, in substance, that in all actions to be commenced in any court of record, if the plaintiff or defendant should happen to die after interlocutory and before final judgment, the action should not, by reason thereof abate, if such action could be originally prosecuted or maintained by or against the executors or administrators of the party dying; but the plaintiff in such case, or, in the event of his death after such interlocutory judgment, his executors or administrators, might have a scire facias against the defendant, or, if he should die after such interlocutory judgment, then against his executors or administrators, to show cause why damages should not be assessed or recovered in such action, etc. It will be perceived that this act is in some of its main features much like our own statute on this subject, and is doubtless the original from which our own was modeled, though ours is unquestionably a great improvement on the English model. This act, it will be further observed, extends only to cases where the death of either party occurs after an interlocutory judgment.

"This brief reference to the earlier decisions founded on the common law, and subsequent legislation on the subject, clearly shows that the idea that a judgment against a dead person is voidable only had its origin in the construction given to the act of 17 Car. II above mentioned, and any extension of the doctrine to cases not falling within that act, or other acts of a similar character, would, on principle, be a clear misapplication of it. It is also to be observed that these statutes, having both been passed since the fourth year of the reign of James I, are not of any binding force in this country, and it is clear the decisions of the English courts construing them are likewise, on principle, of no authority here, and so far as they have been acted upon by the courts of this country in deducing the common law as to the effect of a judgment for or against a dead person, they have led, as already remarked, to much misapprehension and confusion on the subject. Such a judgment, when tested by the common law alone, as we have already seen, is absolutely void. Prior to the legislation above referred to, there was no difference, as respects the validity of a judgment, whether it was rendered against or in favor of a dead party. It was equally void in either case. The very wording of these acts shows such was understood to be the rule at the time of their adoption. The law, however, in course of time became settled in England the other way, so far as it relates to judgments in favor of dead plaintiffs, and the rule became firmly established that the death of the plaintiff must be taken advantage of by plea in abatement, otherwise the judgment would be binding. And such is the general doctrine on the subject at this time: Stoetzell v. Fullerton, 44 Ill. 108. And many respectable courts and authors in this country apply the same rule to judgments against deceased defendants, where they die after having been regularly served with process. According to these authorities, such judgments are voidable only, and hence cannot be

successfully assailed in a mere collateral proceeding: Freeman on Judgments, secs. 140, 153."

III. General Rule as to Whether Such Judgments are Void or Merely Erroneous.

The rendition of judgment for or against a dead person is an error in fact only, which ordinarily can be corrected by a writ of error coram vobis: Stoetzell v. Fullerton, 44 Ill. 108; Case v. Rebelin, 1 J. J. Marsh. 29; Burke v. Stokely, 65 N. C. 569. But there are, of course, circumstances where it may be regarded as a mere clerical error, such as where a judgment dissolving an injunction, with damages, was rendered against a dead man, although previous to the judg ment his legal representatives had become parties to the proceeding: Stackhouse v. Zuntz, 41 La. Ann. 415, 6 South. 666.

The decisions upon the question whether a judgment rendered for or against a deceased person is void or only voidable and not subject to a collateral attack are not in entire accord, but the great weight of authority sustains the proposition that where a court has obtained jurisdiction of the parties and of the subject matter during the lifetime of the parties to the suit, such a judgment, although it may be erroneous and liable to be set aside by direct proceedings, is simply voidable, and not void nor subject to collateral attack: Monographic notes to Evans v. Spurgin, 52 Am. Dec. 109, and Watt v. Brookover, 29 Am. St. Rep. 816; Claflin v. Dunne, 129 Ill. 241, 16 Am. St. Rep. 263, 21 N. E. 834; Davies v. Coryell, 37 Ill. App. 505.

In Elliott v. Bastian, 11 Utah, 452, 40 Pac. 713, the court, in discussing this subject, said: "It is true that some courts hold that such a judgment is absolutely. void, while expressions of others afford ground upon which to predicate this view. We think the better rule to be that when a court has acquired jurisdiction of the subject matter and the person during his lifetime, and a hearing is had and judgment rendered, and the judgment-roll does not disclose the death of either party to the controversy, then such a judgment is not void because one of the parties may have died prior to its rendition. Such judgment, while erroneous, is not void, and 'While the court ought to cease to exercise its jurisdiction over a party at his death, the neglect to do so does not render such a judgment void; it is voidable when properly assailed.' Mr. Freeman announces the rule in these words: 'If jurisdiction is obtained over the defendant in his lifetime, a judg ment rendered against him subsequently to his death is not void': 1 Freeman on Judgments, sec. 140. A different rule, we think, would be mischievous and fraught with evil results. A judgment free upon its face from every infirmity ought to possess some degree of sanctity. Especially should this be the rule in those jurisdictions where the statute limits the time within which applications can be made to the court to vacate and set aside judgments rendered therein. We think the weight of authority clearly supports the view herein expressed: Am. St. Rep., Vol. 126-40

Black on Judgments, sec. 200, and cases cited in note; Hayes v. Shaw, 20 Minn. (Gil. 355) 405; Stocking v. Hanson, 22 Minn. 542; Yaple v. Titus, 41 Pa. 203, 80 Am. Dec. 604; Coleman v. McAnulty, 16 Mo. 173, 57 Am. Dec. 229; Mitchell v. Schoonover, 16 Or. 211, 8 Am. St. Rep. 282, 17 Pac. 867; Jennings v. Simpson, 12 Neb. 558, 11 N. W. 880; MeCormick v. Paddock, 20 Neb. 486, 30 N. W. 602; Reid v. Holmes, 127 Mass. 326; Tapley v. Martin, 116 Mass. 275; New Orleans v. Gaines' Admr., 138 U. S. 595, 11 Sup. Ct. Rep. 428, 34 L. ed. 1102. And this view is strengthened by the statute of this territory which provides that the death or disability of a party to any action or proceeding does not result in its abatement: 2 Comp. Laws, sec. 3187." The death of a party pending the suit does not oust the jurisdiction of the court, and judgment may be rendered nominally for or against such party as represented by his heirs. Such a judgment is not void but merely voidable: Todhunter v. Klemmer, 134 Cal. 60, 66 Pac. 75. Neither will the death of a party pending an appeal render the judgment of the appellate court void although there was no substitution of his representatives as parties: Phelan v. Tyler, 64 Cal. 80, 28 Pac. 114.

The courts are not uniform in their characterizations of judgments rendered for or against deceased persons, but they doubtless, when holding such judgments not to be void, are agreed that such judg ments are not subject to collateral attack. Thus the courts frequently state that such judgments are erroneous or that it is error to enter such a judgment: Jacobson v. Campbell (Ark.), 12 S. W. 784; MeReynolds v. Brown, 121 Ill. App. 261; Young v. Davidson, 129 Ill. App. 657; Nelson v. Gray, 2 G. Greene, 397; Case v. Ribelin, 1 J. J. Marsh. 29; Wittenburgh's Admr. v. Wittenburgh, 1 Mo. 226; or that such judgments may be erroneous, but until reversed by some appropriate proceeding they are valid: Mitchell v. Schoonover, 16 Or. 211, 8 Am. St. Rep. 282, 17 Pac. 867; or that they are not absolutely void: Reid v. Holmes, 127 Mass. 326; or that the death of a party before the entry of judgment does not make the judgment subject to collateral attack: Collins v. Mitchell, 5 Fla. 364; Claflin v. Dunne, 129 Ill. 241, 16 Am. St. Rep. 263, 21 N. E. 834; Coleman v. McAnulty, 16 Mo. 173, 57 Am. Dec. 229; Holt v. Thacher, 52 Vt. 592; Evans v. Spurgin, 6 Gratt. 107, 52 Am. Dec. 105; Hotchkiss v. Bussell, 46 Wash. 7, 89 Pac. 183. Such judgments are not void: Pfirshing v. Heitner, 91 Ill. App. 407; Wood v. Watson, 107 N. C. 52, 12 S. E. 49, 10 L. R. A. 541. Although they are not void, they are generally declared to be voidable: Claflin v. Dunne, 129 Ill. 241, 16 Am. St. Rep. 263, 21 N. E. 834; Hayes v. Shaw, 20 Minn. (Gil. 355) 405; Mitchell v. Schoonover, 16 Or. 211, 8 Am. St. Rep. 282, 17 Pac. 867; Giddings v. Steele, 28 Tex. 732, 91 Am. Dec. 336; King v. Burdett, 28 W. Va. 601, 57 Am. Rep. 687; Watt v. Brookover, 35 W. Va. 323, 29 Am. St. Rep. 811, 13 S. E. 1007; monographic note to Watt v. Brookover, 29 Am. St. Bep.

"Some cases cited by authors as holding that judgments against dead persons are null do not so hold. The word 'void' may be used in them, but in the sense of 'erroneous.' They were in cases where, by proper proceedings, they were sought to be reversed, not attacked collaterally. Such are the cases of Colson's Exrs. v. Wade's Exrs., 1 Murph. 43; Burke v. Stokely, 65 N. C. 569; Moore v. Easeley, 18 Ala. 619. There is a wide difference between a judgment null and void and one erroneous and voidable; the one is no lien, the other is until reversed": Watt v. Brookover, 35 W. Va. 323, 29 Am. St. Rep. 811, 13 S. E. 1007.

But in some jurisdictions the courts have followed the rule which obtained at the common law to the effect that an action abated by the death of the plaintiff or defendant, and hence that a judgment rendered after such death was void: Hunt's Heirs v. Ellison's Heirs, 32 Ala. 173; Bauer v. Wood, 135 Ala. 430, 33 South. 538; Ex parte Massie, 131 Ala. 62, 90 Am. St. Rep. 20, 31 South. 483, 56 L. R. A. 671; Lynch's Exr. v. Tunnell, 4 Harr, 284; Watson v. Adams, 103 Ga. 733, 30 S. E. 577; Kager v. Vickery, 61 Kan. 342, 78 Am. St. Rep. 318, 59 Pac. 628, 49 L. R. A. 153; Edwards v. Whited, 29 La. Ann. 647; Pickett v. Pickett, 41 La. Ann. 882, 6 South. 655; West v. Jordan, 62 Me. 484; Young v. Pickens, 45 Miss. 553; Parker v. Horne, 38 Miss. 215; Weis v. Aaron, 75 Miss. 138, 65 Am. St. Rep. 594, 21 South. 763; Bragg v Thompson, 19 S. C. 572; Carter v. Carriger's Admrs., 3 Yerg. 411, 24 Am. Dec. 585; Morrison v. Deaderick, 10 Humph. 342.

It is not material in applying the rule existing in any jurisdiction whether the deceased party be the plaintiff or defendant. "If the death of the defendant will not render a judgment void, no reason is perceived why the death of the plaintiff should have that effect": Coleman v. McAnulty, 16 Mo. 173, 57 Am. Dec. 229. In actions which do not abate by the death of a party, and where the action has proceeded to decree without objections after the death of the plaintiff and after the jurisdiction of the court has attached, it is a mere irregularity, and the decree is not open to collateral attack: Wardrobe v. Leonard, 78 Neb. 531, ante, p. 619, 111 N. W. 134. The judgment of a court of general jurisdiction, rendered after the death of the plaintiff and in his favor, is merely voidable, where the court had, prior to such death, acquired jurisdiction of the parties: Hayes v. Shaw, 20 Minn. (Gil. 355) 405. And where a cause was tried, submitted and judgment rendered in favor of the plaintiff after her death, but while her counsel and the counsel of the defendant were ignorant of her death, the judgment is voidable only: Gilman v. Donovan, 53 Iowa, 362, 5 N. W. 560. The fact that, pending a petition for certiorari, one of the petitioners dies, does not render a judgment entered subsequently void: Holman v. G. A. Stowers Furniture Co. (Tex. Civ. App.), 30 S. W. 1120. And where plaintiff dies before judgment was rendered in his favor, the court in which the judgment was rendered may set it aside at a subsequent term and reinstate the cause on the docket: Moore v. Easley, 18 Ala. 619. Where plaintiff died and an

executor was appointed, but the case was continued in the name of the deceased plaintiff instead of that of his executor, the judgment is not void, since the error is merely one of form: Gregory v. Haynes, 21 Cal. 443.

A decree signed and filed after the death of a necessary defendant without a revivor of the suit against his heirs or representatives is reversible on appeal, even though the decree was written out before his death and bore date of the term when the defendant was still alive: Powe v. McLeod, 76 Ala. 418. But judgment may be entered in the name of a party who dies after verdict but before the signing of the minutes of the court: Fowler v. Burdett, 20 Tex. 34. The representatives of a defendant who dies after verdict need not be made parties in order to entitle the plaintiff to a valid judgment: Beard v. Hall, 79 N. C. 506. And after jurisdiction has been acquired the court may proceed to judgment and sell property attached notwithstanding the death of the judgment debtor before the entry of the judgment: Cochran's Heirs' Lessee v. Loring, 17 Ohio, 409.

The mere fact that jurisdiction is obtained over a person by service of the summons by publication will not render the judgment entered against such defendant after his death void: McCormick v. Paddock, 20 Neb. 486, 30 N. W. 602.

In Finney v. Ferguson, 3 Watts & S. 413, a judgment by confession rendered after the death of the plaintiff and before the substitution of his representatives was held void as to such representatives and all persons who were collaterally interested in the payment of the judgment, but the element of fraudulent entry entered in the case. In South Carolina a judgment by confession entered after the death of the defendant was sustained. The judgment was confessed during vacation. After the next term the contingency happened on which the plaintiff was to have the right to enter it up. A short time thereafter the defendant died and plaintiff then entered up the judgment: Keep v. Leckie, 8 Rich. 164. In another case the fact that a judgment was entered on a warrant of attorney after the defendant's death was held not a good defense to a scire facias to revive the judgment: Carr v. Townsend's Exr., 63 Pa. 202. And where a judgment in ejectment was based on an agreement signed by the attorney for one of the parties after his death, it was held that ät could not be collaterally attacked: Buck v. Williams, 10 Heisk. 264. But in Delaware a judgment entered by warrant of attorney in the name of the obligee in a judgment bond, several terms after his death, was declared null and void, but the right to thereafter enter it again on the warrant of the attorney but in the name of the administrator was affirmed: Guyer's Admr. v. Guyer, 6 Houst. 430.

Default judgment in favor of the commonwealth against the principal and sureties in the bond of the clerk of court was not void as to the sureties, even though the principal was dead at the time that judgment was rendered, since the court would have had jurisdietion against the sureties alone: Asher v. Commonwealth, 23 Ky.