ART. 5] ABATEMENT IN THE COURT OF APPEALS. 169

Abatement in the Court of Appeals.

1904, art. 5. sec. 75. 1888, art. 5, sec. 73. 1860, art. 2, sec. 9. 1815, ch. 149.

1888, ch. 42.

75. No case in which an appeal has been prayed' or writ of error
applied for, whether the record shall have been transmitted to the court
of appeals or not, shall abate by the death of either of the parties to
such appeal or writ of error if the heir, executor or other proper party
to be made a party shall make the necessary suggestion, and appear to
such appeal or writ of error for the purpose of prosecuting or defend-
ing the same; and if the heir, executor or other proper party to be made
a party shall fail to make such suggestion and appear to such appeal or
writ of error within twenty days after the beginning of the term to
which the appeal or writ of error is taken, it shall be competent for the
other party to such appeal or writ of error to make such suggestion,
and thereupon process shall immediately issue to the party named in
said suggestion to appear by a day to be therein named, and be made
a party to such appeal or writ of error.

This section applies to cases in which an appeal has been entered during
the lifetime of the parties, and not to a case where one of the parties dies
before the appeal is prayed. Goldschmid v. Meline, 86 Md. 372; Harryman
v. Harryman, 49 Md. 69. See also, Thomas v. Thomas, 57 Md. 509.

Where, in an action for malicious prosecution, after appeal prayed the
defendant dies, the suit will abate. Clark v. Carroll, 59 Md. 181; Turner
v. Walker. 3 G. & J. 377.

This section applies in a negligence suit for injury to the person, where
the plaintiff dies after appeal prayed. Siacik v. Northern Central Ry Co.
92 Md. 214.

This section is to be construed in connection with sections 76 and 77.
Where the heir, etc., is a defendant, he can not elect to suffer the case to
abate. Object and effect of this section. Carroll v. Bowie, 7 Gill, 38.

At common law a judgment can not be obtained if either party is dead,
but if such judgment is entered notwithstanding the death of one of the
parties, it is conclusive. Trail v. Snouffer, 6 Md. 314.

This section held to have no application. Booze v. Humbird, 27 Md. 5;
Owings v. Owings. 3 G. & J. 1.

Cited but not construed in Hopper r. Jones, 64 Md. 581; Young v. Citizens'
Bank, 31 Md. 70.

See sections 59 and 87.

As to abatement and revivor at law, see art. 75, sec. 25, et seq. As to
abatement and revivor in equity, see art. 16, sec. 1, et seq.
See art. 93, sec. 104.

Ibid. sec. 76. 1888. art. 5. sec. 74. 1860, art. 2, sec. 10. 1815. ch. 149.

76. When the plaintiff in an appeal or writ of error dies before the
term to which such an appeal or writ of error is returnable, the heir,
executor or other proper person to be made a party, may appear in the
court of appeals and suggest the death of the plaintiff, and appear to
such appeal or writ of error for the purpose of prosecuting the same.

This section applies to cases where the plaintiff, who has already taken
an appeal, dies before the term to which the appeal was returnable, and
not to a case where the plaintiff dies before the appeal was prayed. Gold-
schmid v. Meline, 86 Md. 372; Harryman v. Harryman, 49 Md. 69.

This section held to have no application. Harryman v. Harryman. 49
Md. 67; Owings r. Owiugs. 3 G. & .1. 1.
See notes to sections 75 and 77.