
    Sallie Yeager’s Adm’r. v. Oliver Holcombe.
    Abatement and' Revival — Action Prosecuted in Name of State — Death of Relator.
    Where a 'citizen is prosecuting an action in the name of the state for a change in a public road, the action will abate on his death, unless some other citizen voluntarily comes into court and asks to be allowed to take his place, and will not pass to his representatives and heirs.
    APPEAL FROM UNION CIRCUIT COURT.
    February 21, 1874.
    
      Ken Chápese, for appellant.
    
    
      D. H. Hwghes, for appellee.
    
   Opinion by

Judge Lindsay :

Yeager had no such interest in the proceeding pending in the Union County Court, to procure a change in a public road, as would pass upon his death to his representatives and heirs. The real party in interest was the public, and Yeager was only permitted to represent it and to test the propriety of the proposed charge, upon the condition that he would be responsible for costs in case of failure. The proceeding necessarily abated with his death, unless some other citizen would voluntarily come into court and ask to be allowed to take his place.

It was improper for the court to allow his administrator and infant heirs to be brought into court, and made responsible for the costs. The motion of the attorney to have them' brought before the court should have been overruled, and the motion of Holcombe to dismiss the proceeding after they had been summoned, should have prevailed.

The judgment of the circuit court conforms to his view of the law. It is therefore affirmed.  