#### STATE ex rel. MARY COGGINS v. J. T. ELYTHE et al.

Practice — Parties—Abatement—Supplementary Complaint•— Discretion of Judge.

Where two of several plaintiffs died and, there being no personal representative within a year thereafter, no motion was made to continue the action as to them, but the cause remained upon the *275docket and was proceeded with by the remaining plaintiffs, whose rights were finally determined, and the defendants did not apply to have the action abated as to the deceased parties, it was within the discretion of the presiding Judge to allow' the personal representative of such deceased parties to file a supplementary complaint and prosecute the action, his motion to be allowed to do so -having been made before the final judgment was rendered in the cause.

This aotioN was commenced by summons issued March 9, 1878, returnable to Spring Term, 1878, of Northampton Superior Court, in the name of tire State of North Carolina on the relation of Mary L. Coggins and husband, K. R. Coggins, Thomas C. Harris, Martha Harris and Addie Harris, as plaintiffs, against the defendants.

The action was referred to R. 0. Burton, Esq., as referee. After several hearings before said- referee, and before ho made his report, Martha A. Harris and T. C. Harris died— the former in 1882 and the latter in 1883 — and it was admitted before said referee, at a hearing on the 27th July, 1886, that the said T. C. Harris and Martha had died intestate, and that no administrator had qualified on either of their estates. T. C. Harris became of age June 9, 1875, and Martha A. Harris June 12, 1879. The referee continued to take evidence after the death of Thomas and Martha, and on the 12th day of December. 1888, filed his report as to the accounts between the defendant Flythe and Mary L. Coggins, and Addie, who married John E. Pepper pending the action, but did not state the account between the said Flythe and his wards, Thomas and Martha Harris. In consequence of exceptions to said report sustained the matters between Mary L. Coggins and Addie Pepper and defendants were referred back to said referee, and on March 22, 1890, he filed liis second report. Exceptions to this report were heard at Spring Term, 1892, and final judgment was rendered as between the defendants and Mary L. *276Coggins and Addic Pepper and their husbands. From this judgment tho defendants appealed, and the said Mary L. Coggins and Addie Pepper and their husbands appealed to the Supreme Court of North Carolina, and in said Court final judgment was rendered at Fall Term, 1896, as between the defendants and said Mary L. Coggins and Addie Pepper, and said judgments are still unsatisfied. Said judgments were certified to the Court below prior to December 4,1893.

No letters of administration on the estate of either Tilomas or Martha Harris were taken out until April 1, 1893, when J. A. Burgwin qualified as administrator on tho estates of both before, the Clerk of said Superior Court, and on the 10th day of April he filed affidavit to that effect in the cause; and at the August Term, 1893; he made a motion in ojien court, the counsel for defendants being-present, to be allowed to be made parties plaintiff as administrator of Thomas C. Harris and as administrator of Martha Harris, and the motion was continued. Owing to the sickness of Judge Bynum there was no Fall Term of said Superior Court, and at the Special Term, December 6,1893, the motion was heard before Whitaker, J. No motion had ever been made upon notice to the parties in interest to abate the action as to said Thomas and Martha Harris. The motion was resisted, upon the ground that it came too late — after the death of Thomas and Martha Harris, and after final judgment between defendants and Mary L. Cog-gins and Addie Pepper and their husbands. The motion was allowed, as appears by the judgment of record, and defendants ajipealed.

Mr. R. B. Peebles, for plaintiff.

Mr.. Thomas IF Mason, for defendants (appellants).

MacRak, J.:

The action did not abate upon the death of the two plaintiffs, Thomas C. and Martha A. Harris. The *277cause remained upon the docket and was proceeded with at the instance of the surviving plaintiffs, whose rights have now been determined. There being no personal representative of the deceased plaintiffs, no motion was made within a year after their death to continue the action as to them. It was within the power of the defendants at any time after their death to have applied to the Court to have the action abated as to them unless proper parties were brought in, but as this was not done it was entirely within the discretion of the presiding Judge to allow their representative to file a supplementary complaint and prosecute the action upon his motion to that effect, made before the final determination of the cause. The Code, §188; Baggarly v. Calvert, 70 N. C., 688; Moore v. Railroad, 74 N. C., 528. Affirmed.