Maloney

C. B. Spencer, now deceased, instituted, as plaintiff, an action against J. W. Maloney, United States Collector of Internal Revenue for the District of Oregon, as defendant, for refund of taxes alleged to have been illegally collected. Judgment was rendered in favor of plaintiff on the 24th of June, 1947. Plaintiff died August 13, 1947. The cause of action survived. Defendant filed a notice of appeal from said judgment September 19, 1947. No substitution of parties plaintiff was attempted in the district court. Defendant had no notice of the death of plaintiff before he filed the notice of appeal. Grace Neff Spencer was appointed administratrix of the estate of C. B. Spencer on August 19, 1947, one month prior to the filing of the notice of appeal. The notice of appeal was served upon the attorneys of record for the plaintiff in the trial court. The same attorneys now represent the admininstratrix in the probate proceedings in the state court.

The administratrix has filed a suggestion of death in this court and, appearing specially, has moved to dismiss the appeal on the ground that at the time of filing the notice of appeal, no substitution of the administratrix had been made;…