cause of action do not admit of survivorship, and the court is of opinion, that the merits of the controversy can be properly determined, and the principles applicable to the case fully settled, it may proceed to try the same as between the remaining parties; but the judgment shall not prejudice any who were not parties at the time of the trial.
When one of the parties dies.Sect. 414. When one of the parties to an action dies, or his powers as a personal representative cease before the judgment, if the right of action survive in favor of, or against his representatives or successor, the action may be revived, and proceed in their names.
To be revived in names of representatives.Sect. 415. The revivor shall be, by a conditional order of the court, if made in term, or by a judge thereof, if made in vacation, that the action be revived in the names of the representatives, or successor of the party who died, or whose powers ceased, and proceed in favor of, or against them.
Order may be made, on whose motion.Sect. 416. The order may be made on motion of the adverse party, or of the representatives or successor of the party who died, or whose powers ceased, suggesting his death, or the cessation of his powers, which, with the names and capacities of his representatives or successor, shall be stated in the order.
If by consent. If not by consent.Sect. 417. If the order is made by consent of the parties, the action shall forthwith stand revived; and if not made by consent, the order shall be served in the same manner, and returned within the same time as a summons, upon the party adverse to the one making the notion, and if sufficient cause be not shown against the revivor, the action shall stand revived.
If representatives of defendant are non-residents or conceal themselves.Sect. 418. When the plaintiff shall make an affidavit, that the representatives of the defendant, or any of them in whose name the action may be ordered to be revived, are non-residents of the territory, or have left the same to avoid the service of the order, or so concealed themselves that the order cannot be served upon them, or that the names and residence of the heirs or devisees of the person against whom the action may be ordered to be revived, or some of them, are unknown to the affiant, a notice may be published for four consecutive weeks, as provided by section sixty-nine, notifying them to appear on a day therein named, not less than ten days after the publication is complete, and show