est due on a promissory note, and on the same day sued out a writ of attachment against the property of the defendants. The summons as well as the attachment were served in Union county, Or., on the next day after they were issued. On the 27th day of June, 1886, the defendants appeared by their attorney in fact, Willis Skiff, and filed a demurrer to the complaint, which was on the 1st day of October, (it being the October term of said court,) 1886, overruled. On the 6th day of October, 1886, the plaintiff took judgment against the defendants for want of an answer. On the 26th day of November, 1886, Nelson Schoonover filed a petition, entitled in said action, reciting the above facts, and, further, that on the 6th day of October, 1886, M. B. Baird died at Union county, Or., and after his death plaintiff took judgment against said deceased, and an order for the sale of the attached property which belonged to said deceased; that the petitioner was on the 13th of October, 1886, duly appointed administrator of the estate of M. B. Baird, deceased, by the county court of Union county, Or. The prayer, in substance, is for an order allowing petitioner to appear in said action as the duly-qualified administrator and legal representative of said deceased, and the further proceedings in said action be taken as against the petitioner as such legal representative. Thereafter on the 10th day of December, 1886, the plaintiff, by his attorneys, filed a motion to strike Schoonover's petition from the files; which motion was denied, on the 14th day of December, 1886. Afterwards the plaintiff filed a motion to strike paragraph 5 from Schoonover's petition, which recited that judgment was taken against said M. B. Baird after his death. On the 21st day of February, 1887, this motion was allowed by the court, and paragraph 5 was stricken out, and it was further ordered that said cause, as to said M. B. Baird, deceased, be, and the same is hereby, continued in the name of Nelson Schoonover, as administrator of said estate of M. B. Baird, deceased. On the 23d day of February, 1887, Nelson Schoonover filed a motion to vacate the judgment as to M. B. Baird, deceased, for the reason that the judgment against said M. B. Baird is void, having been rendered after his death. In support of this motion, numerous affidavits are filed. If said affidavits are competent or material, or can be considered, they tend to show that M. B. Baird died at Union, in Union county, Or., on the 6th day of October, 1886, at about the hour of 5 o'clock A. M. of said day, and that the judgment was not entered until after the hour of 9 o'clock A. M. of the same day. The plaintiff filed a motion to strike out these affidavits. The same was overruled, and Nelson Schoonover, as administrator, was allowed 10 days in which to file an amended motion and affidavits. Within the time allowed, an amended motion and some additional affidavits were filed. Afterwards, on the 23d day of July, 1887, both motions were denied by the court, from which last-named order overruling his motion to vacate the judgment as to M. B. Baird, deceased, Nelson Schoonover has appealed, and assigns for error the action of the court in overruling his said motion. Schoonover's amended petition to vacate said judgment shows that said M. B. Baird was insolvent at the time of his death, and that the attachment was levied wholly upon the real property of said M. B. Baird, and not upon any of the property of Thomas P. Baird; that fully $3,000 of M. B. Baird's debts were due to sureties of said M. B. Baird, who had made advances for him, etc. The application of Schoonover to vacate the judgment seems to be founded upon two theories: (1) That the death of M. B. Baird dissolved the attachment; and (2) that the judgment is void, because it is alleged that he died a few hours before the judgment was entered up. It may be doubted whether or not the order made in this case refusing to vacate this judgment is an appealable order. "A final order affecting a substantial right, and made in a proceeding after judgment or decree for the purpose of being reviewed, shall be deemed a judgment or decree." 1 Hill's Code, $535. It is not perceived how this order affected a substantial right. No defense to the action was offered or proposed, nor did the appellant offer an

answer of any kind. But this question was not suggested at the argument, and the decision will not be placed on this ground.

* * *

*

*

1. It is conceded that there is no provision of the Code which declares that an attachment will be dissolved by the death of either party. If such a result follows death, it must be gathered inferentially from some provision of the Code, because it is nowhere expressed. But it will be most convenient to see, first, what effect the death of a party has upon a pending action. Section 38, Hill's Code, declares: "No action shall abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death, marriage, or other disability of a party, the court may, at any time within one year thereafter, allow the action to be continued by or against his personal representatives or successor in interest." And by section 144 it is provided that "the plaintiff may at the time of issuing the summons, or any time afterwards, have the property of the defendant attached as security for the satisfaction of any judgment that may be recovered. From the date of the attachment until it be discharged or the writ executed, the plaintiff, as against third persons, shall be deemed a purchaser in good faith for a valuable consideration of the property, real and personal, attached. * If effect be given to all of these provisions of the Code, the attachment is not dissolved by death. If a party die, the adverse party may, within one year thereafter, cause the action to be continued by or against the personal representatives of such deceased party; and the effect of a judgment in such action is to subject the property attached to its payment. There is some conflict among the authorities on the subject; but I think the decided weight of authority, as well as the better reason, is to the effect that an attachment is not dissolved by death unless some statute expressly so declares. In More v. Thayer, 10 Barb. 258, a complaint had been filed, and an attachment issued and served, but no summons had been served; but the court had acquired such jurisdiction of the action by the allowance of the provisional reinedy of attachment that the defendant's administrator could be brought in, and the attached property subjected to the judgment. So, in Perkins v. Norvell, 6 Humph. 151, it was held that the death of the defendant did not dissolve the attachment, and that the attached property might be subjected to the payment of the debt by bringing in the heirs by means of a scire facias. In Thacher v. Bancroft, 15 Abb. Pr. 243, an attachment was issued, and on the same day the defendant died. Subsequently his executor appeared, and defended the action, and judgment was rendered in favor of the plaintiff. In passing on the question whether the attachment held the property or not, the court said: "The attachment remains in force not withstanding the death of the defendant. The revival of the action by the appearance of the executor enables the plaintiff to obtain his judgment. Payment of such judgment out of the attached property can only be obtained through an execution by which the attached property is to be sold. So in Kennedy v. Raguet, 1 Bay, 484, an attachment was issued, and certain persons were garnished The garnishees made default, and judgment went against them. About the time or immediately after the issuing execution it was discovered that Raquet, the principal debtor, had died at Bordeaux before the signing of judgment against the garnishees. They therefore moved to set aside the judgment and execution against them, for the reason that the death of the defendant before judgment abated the action, and dissolved the attachment. But their motion was disallowed, and they were held liable on the judgment. So, also, in Holman v. Fisher, 49 Miss. 472, it was held, in effect, that, if a defendant die after the service of a writ of attachment, the writ is not abated, but may proceed to judgment; the court holding that the proceedings thereby become strictly in rem, under the statute of that state. And the like rule was held in White v. Heavner, 7 W. Va. 324, the court saying: "The death of Henry O'Middleton, the debtor, after the attachment was levied on the real property,

did not dissolve the attachment, or the lien thereof upon the realty attached." 2. But it is argued that this judgment is void, and for that reason it ought to have been set aside. But the authorities do not sustain this position. It must be remembered that the judgment itself is not before us, for the reason the appellant took no appeal from it. We are not, therefore, required or permitted to say whether it is reversible for error or not. The only necessary point for us to consider on this branch of the case is whether or not the court below erred in overruling the appellant's motion for the reason stated therein. The decided weight of authority seems to be to the effect that if a court of general jurisdiction, or a court which has acquired full jurisdiction over the cause and over the parties, renders a judgment for or against a party after the death of such party, the judgment is not for that reason void. It may be erroneous, but, until reversed by some appropriate proceeding, it is valid. In Reid v. Holmes, 127 Mass. 326, the question came before the supreme court of that state, and it was held the judgment was not void. The court said: “If the fact agreed in the case stated of the death of the defendant after the default, and before the judgment, is competent to be considered, it does not show that the judgment is absolutely void. The court at the time of bringing the former action had jurisdiction of the subject-matter and of the parties, and might after the death of the defendant have rendered judgment against him as of a previous term, (Tapley v. Martin, 116 Mass. 275; Kelley v. Riley, 106 Mass. 339, 341; Tapley v. Goodsell, 122 Mass. 176-181;) or the judgment actually entered might, on motion of the plaintiff, have been amended so as to stand as a judgment nunc pro tunc, or have been vacated, and the administrator summoned in to defend the action, (Stickney v. Davis, 17 Pick. 169.)” So, in Case v. Ribelin, 1 J. J. Marsh. 29, it was held that such a judgment was not void, but erroneous; that the error consisted of matter of fact which, not appearing on the record, the court could not notice, and that the same was to be corrected by a writ of error coram vobis. Yaple v. Titus, 41 Pa. St. 195, is to the same effect; and other authorities announce the same principle. Hayes v. Shaw, 20 Minn. 405, (Gil. 355;) Coleman v. McAnulty, 16 Mo. 173; Camden v. Robertson, 2 Scam. 507.

3. But under the state of this record at the time M. B. Baird is said to have died, it was the duty of the court to see that the plaintiff was not prejudiced by its delay in entering judgment. The court overruled the defendant's demurrer to the plaintiff's complaint on the first day of the October term. They did not apply for leave to answer or plead further. At the time the demurrer was overruled, the plaintiff was then entitled to a judgment according to the prayer of his complaint. His cause of action stood admitted upon the record, and it was the duty of the court to enter judgment against the defendants according to the facts as they were alleged in the complaint. If, while the cause is in this condition, the defendant dies, the plaintiff is not to lose the fruits of his litigation, and, if necessary, it is the duty of the court to enter judgment nunc pro tunc as of the previous term, or, under our practice, an earlier day in that term. This is the common-law rule of practice, and the Code has not changed it. In Blaisdell v. Harris, 52 N. H. 191, after verdict for the plaintiff, the case was transferred to the law term for the consideration of the full bench, upon exceptions taken by the defendant. While the cause was thus pending in the law term, the defendant died. Afterwards, the defendant's exceptions being overruled, it was held that the plaintiff should have judgment as of the previous term, when the verdict was rendered. In Tapley v. Martin, 116 Mass. 275, it was held that if, after verdict for the plaintiff, the defendant dies, the court has power to pass upon the exceptions alleged by him, and, if justice requires, to enter judgment nunc pro tunc as of the term when the verdict was rendered, although no administrator had been appointed in said state. And the same principle was announced in Wilson v. Myers, 15 Amer. Dec. 510. And this practice prevails generally. McLean

v. State, 8 Heisk. 22; Spalding v. Congdon, 18 Wend. 543; Currier v. Inhabitants of Lowell, 16 Pick. 170; Griffith v. Ogle, 1 Bin. 172; Tooker v. Duke of Beaufort, 1 Burrows, 146; 2 Tidd, Pr. 932. Generally, the law does not regard fractions of a day, except in cases where the hour itself is material; as in case where priority of judgments, or priority of lien, and the like, is in question. Marvin v. Marvin, 75 N. Y. 241; Judd v. Fulton, 4 How. Pr. 298; Phelan v. Douglass, 11 How. Pr. 193; Turnpike Road v. Haywood, 10 Wend. 422; Hughes v. Patton, 12 Wend. 234; Small v. McChesnay, 3 Cow. 19; Clute v. Clute, 3 Denio, 263; Blydenburgh v. Cotheal, 4 N. Y. 418; Jones v. Porter, 6 How. Pr. 286. Counsel for appellant have not cited a single authority from any book holding that, for the purpose of defeating a judgment of a court of general jurisdiction, the legal representative of a deceased defendant may allege that on the same day, and at a previous hour before the rendition of the judgment, his intestate had died, and my own researches have failed to find any authority for that position. Our views on the merits being adverse to the defendant, we have not thought it necessary to consider or decide the technical objections urged as to the form in which the questions are presented.

There being no error prejudicial to the rights of the appellant, the judgment appealed from must be affirmed.

(16 Or. 219)

CHE GONG et al. v. STEARNS, Judge.

(Supreme Court of Oregon. April 16, 1888.)

1. BILL OF EXCEPTIONS-TIME OF SIGNING.

There is no statute in this state fixing the time within which a circuit judge may sign a bill of exceptions.

2. SAME-POWER OF CIRCUIT JUDGE.

If, during the progress of a trial, a party took exceptions, which were reduced to writing, or noted on the judge's minutes, and for any satisfactory cause he was unable to have his bill of exceptions drawn out in form and signed during the term, the judge who presided at the trial has the power to sign the same afterwards, and it becomes a part of the record, with the same effect as if signed during the term.1

Morgan v. Thompson, 13 Or. 230, 9 Pac. Rep. 564. This case, so far as it is in conflict with this opinion, is overruled.

3. SAME-MANDAMUS TO COMPEL SETTLEMENT-POWER OF SUPREME COURT.

As incident to and in aid of its appellate jurisdiction, this court has the power, by writ of mandumus, to require a circuit judge to settle and allow a bill of exceptions.

(Syllabus by the Court.)

Original proceedings in mandamus.

Williams & Wood and P. H. De Arcy, for petitioners. Henry E. McGuin and N. D. Simon, contra.

'Bills of exceptions must be prepared and settled before the end of the term at which the cause was tried, Sweet v. Perkins, 24 Fed. Rep. 777; Stave Co. v. Manufacturing Co., 32 Fed. Rep. 822; or within such time as the parties by their agreement, made part of the record, may stipulate, or within the time allowed by the court in its order to that effect, made in term-time and appearing in the record, Hake v. Strubel, (Ill.) 12 N. E. Rep. 676; City of Westminster v. Shipley, (Md.) 13 Atl. Rep. 365. A distinction is to be observed in this respect between the settling and allowance of a bill, which is an act judicial in its nature, and the act of signing and sealing the bill, which is merely ministerial. Hake v. Strubel, (Ill.) 12 N. E. Rep. 676. The bill must be signed during term-time, unless authorized to be signed after adjournment, by consent or agreement of counsel. Markland v. Albes, (Ala.) 2 South. Rep. 123; State v. Smith, (Kan.) 16 Pac. Rep. 254. Bills of exceptions filed more than 10 days after the expiration of the trial term of the court below will not be considered on appeal. Stewart v. State, (Tex.) 6 S. W. Rep. 317. But where one has done all in his power to procure the settlement of, and signature to, the bill, he cannot be prejudiced by the delay of the judge. Davis v. Patrick, 7 Sup. Ct. Rep. 1102; Stave Co. v. Manufacturing Co., supra.

STRAHAN, J. During the present term the plaintiffs filed their petition in this court praying that an alterative writ of mandamus issue, directed to Hon. Loyal B. Stearns, judge of the Fourth judicial district, requiring him to settle and sign a bill of exceptions, or to show cause why he refuses. The writ was awarded, and the return is now before the court, and will be more particularly referred to presently. It appears from the petition and exhibits that on the 13th, 14th, and 15th days of December, 1887, the plaintiffs were tried for the crime of murder in the first degree in the circuit court of the state of Oregon for Multnomah county, and that Hon. L. B. Stearns presided as judge at said trial; that numerous exceptions were taken by the petitioners to the rulings of said court during the progress of said trial, but that the same were not then written out and signed by said judge; and that the trial resulted in a verdict of guilty as charged in the indictment, and the petitioners were sentenced to be hanged. At the conclusion of the trial, the attorneys for the petitioners asked and obtained leave of court to present a bill of exceptions to the judge for his signature within 10 days. No bill of exceptions appears to have been presented for the judge's signature within the time specified in the order. Thereafter other counsel appeared for petitioners, and tendered a bill of exceptions to the judge for his signature on the 16th day of February, 1888. The return is in the nature of a demurrer to the writ. It does not controvert any of the facts alleged, but alleges, in sub. stance, that it affirmatively appears that no bill of exceptions was prepared or tendered to said judge within the term at which the trial was had, nor within any extension of time for that purpose, and that no bill of exceptions was tendered until after the final adjournment of the court for the term, and after said judge had lost all jurisdiction or control over the matter, and was and is wholly without power or authority to settle or sign said bill. The question as to the sufficiency of this return has been argued, and it is the only contested point before us. The question presented for determination is whether or not in any case, or under any circumstances, a circuit judge has the power to sign and allow a bill of exceptions embodying the exceptions taken and allowed during the progress of the trial, but not then written out for want of time, or other sufficient cause.

No time is fixed by any statute in this state within which a circuit judge may sign a bill of exceptions, or denying his right to sign it after the term. Hill's Code, § 231, provides: "The point of the exception shall be particularly stated, and may be delivered in writing to the judge, or entered in his minutes, and at the time, or afterwards, be corrected until made conformable to the truth;" and section 233 provides: "The statement of the exception, when settled and allowed, shall be signed by the judge, and filed with the clerk, and thereafter it shall be deemed and taken to be a part of the record of the cause. * **" In Ah Lep v. Gong Choy, 13 Or. 205, 9 Pac. Rep. 483, this court had under consideration the question presented by this record. In that case the judgment was entered on the 16th day of March, 1885, and the notice of appeal was served two days thereafter. On the 1st day of October, 1885, the bill of exceptions was settled and allowed by the judge who presided at the trial, and on the same day was filed with the clerk. This court will notice judicially that the terms of the circuit court of Multnomah county are on the third Monday in January, the first Monday in May, and the first Monday in September, so that two terms of court intervened between the date of the judgment and the signing of the bill of exceptions in Ah Lep's Case. In that case the language of GOLDTHWAITE, J., in Etheridge v. Hall, 7 Port. (Ala.) 47. is quoted with approbation, to the effect that the court did not wish to be considered as expressing the opinion that the practice of signing bills of exceptions after the termination of the court is proper; but cases may exist in which it is necessary to pursue this course, as it is not infrequent that sufficient time is not allowed to enable a judge to examine them during the term, or counsel