McClane v. Boon

ERROR to the Supreme Court of the State of Oregon.

On motion. Boon filed a bill in a State court of Oregon against McClane, to enjoin him from prosecuting an action at law to recover the possession of a lot of land, for which a patent had been issued to McClane by the United States, and praying that the same might be held by McClane as trustee for the benefit of him, Boon. The court dismissed the bill. On an appeal to the Supreme Court, that court reversed the decree, and rendered one for the plaintiff. McClane, the defendant, sued out a writ of error from this court to the Supreme Court of Oregon, returnable December Term, 1863, which was dismissed at the December Term, 1866.

A second writ of error was issued July 29th, 1867, returnable at the next term of the Supreme Court of the United States. On the 15th June, 1864, pending the first writ of error, Boon, the defendant in error, died.

Mr. Lander now made a motion, having for its object to revive the writ of error, by suggesting the death of Boon, and substituting the widow and heirs-at-law as parties to the record.

The parties described in the present writ of error, it will be observed, were the parties to the original suit, and the writ, therefore, was issued in the name of a dead man.

Mr. Lander, in support of his motion, argued, that being a chancery suit, the death of the plaintiff had not abated but only suspended it; that the writ of error was a continuation of the original litigation; that this being so, the plaintiff in error had made the suggestion in the only court open to him.

Mr. Williams, contra: That the motion was against proper practice; that the remedy, if any, was in the court below.

Mr. Justice NELSON delivered the opinion of the court.