Crawford v. Whitehead — 2 Edm. Sel. Cas. 317

Majority

p. 317

SUPREME COURT—SPECIAL TERM.

December, 1851.

Before Edmonds, Justice.

Crawford v. Whitehead.

Headnote

It is no sufficient answer to a motion to dismiss the complaint for want of prosecution, to say that the plaintiff is dead, that no representative can he found to revive the action, hut that the attorney hopes to find a representative.

This was a motion for an order dismissing the complaint for want of prosecution. The answer to it was that the plaintiff was dead and had no personal representative in tiffs State. The other material facts appear by the judgment.

It seems to me that the excuse given for not. reviving the suit is a good reason why no further facilities should be afforded with that view. It is said that there is no personal representative of the plaintiff' in this State, but the attorney on the record hopes to be able to get one appointed, and that is all he can say— and that he can say years hence as well as now; and the grounds for asking time to revive will be just as tenable one or two years hence as they are now.

It is very plain that the action cannot be revived for the want of a personal representative of the plaintiff, and the misfortune of that ought not to fall on the defendant; and it would be productive of nothing but delay to afford any further facilities for making an attempt to revive, which it is evident would be futile.

Order to dismiss granted.