Martin

The appeal in the -above-entitled canse was pending in this court upon the twenty-fourth day of October, 1896. Upon that day defendant and respondent Wagner died. After his death a brief was filed by James A. Louttit on behalf of the appellants, and by Elliott & Elliott on behalf of respondents. Subsequently these attorneys entered into a stipulation submitting the cause for decision, and upon April 19, 1898, this court rendered its judgment reversing that of the trial court. No petition for a rehearing was presented, and the remittitur issued in due -time. No suggestion of the death of Wagner, nor request for a substitution of his representatives, was made until December 5, 1898, when Elliott & Elliott, who had been Wagner’s attorneys in the litigation, -and who now appear as the attorneys for his executrices, moved the court to recall the remittitur and to substitute the executrices in place of Wagner, deceased. No attempt is made to excuse the delay, nor is any explanation offered why the suggestion of the death of Wagner was so long delayed.

Were the judgment so rendered by this court void, it would be its plain duty to recall the remittitur and restore the appeal to the…