HENRY S. MOORE, Plaintiff in Error, vs. SUSAN RAND, Administratrix of the estate of Stephen S. Rand, deceased, Defendant in Error, 1 Wis. 245

By the Court, Whiton, C. J. We see no’ error in this rec01’d. Our statute provides (JR. 8. Chap. 96, § 2,) in the case of the death of a party to a suit, whether plaintiff" or defendant, that the death of the party shall be suggested on the record, and that his executor or administrator may thereupon appear and take upon himself the prosecution or defence of the suit, as the case may be; and, that the suit shall thenceforth be conducted in the same manner as if it had been originally commenced by or against the executor or administrator. This was done in the case before us.

The death of Rand was suggested on the record, and an order was made by the court, that the suit should be revived, upon the appointment of an administrator. This order appears to have been entirely unnecessary, as the statute gives the executor or administrator the power to appear and take upon himself the prosecution or defence of'the suit, upon the suggestion of the death of the party upon the record, without any order of the court whatever. It clearly was not necessary that the court should make an order to revive the suit.

But the order was made and the adminis-tratrix appeared to prosecute the suit to its termination. Although the appearance of the administratrix to prosecute the suit, after the death of the plaintiff was suggested upon the record, was sufficient without an order, yet the entering of the order by the judge would not make the appearance irregular. The order did not prejudice the defendant. It appears that the defendant below moved for a continuance of the case, on the ground that the suit had not been revived, and that the judge overruled the motion. This, certainly, was not error.

The defendant did not allege any reason for the continuance, except the fact that the suit had not been revived; and this, as we have seen, was entitled to no weight. The defendant alleges that he was taken by surprise, as he had no means of knowing that Susan Rand was administratrix, or that she had taken upon herself the prosecution of the suit. It appears to us that this constitutes no objection.

After her appearance was entered in the cause, in pursuance of the statute, her right to appear must of course be proved in the same manner as though the suit had been originally commenced in her name; but she could not be called upon to prove it before she became a party to the suit. Upon the whole, we see no error, and the judgment of the Circuit Court must be affirmed.