¶1 (specially concurring). I concur in a reversal of the judgment in this case and I agree that it is reversible on its merits, but I do not think the merits ought to be considered. When the action was commenced, both defendants were permanent residents of the state of 'California, and the summons was served on both of them in that state on the 6th day of December, 1933. The defendant J. PI. Ferris never entered any appearance of any kind in the action nor in any manner submitted to- the jurisdiction of the circuit court of Davison county. The court proceeded, however, with the trial of the case.
¶2 Findings of fact, conclusions of law, and judgment were for plaintiff, and defendant L. E. Ferris appeals.
¶3 In this case the court never acquired any jurisdiction -whatever over J. H. Ferris, and the judgment against him for $2,673 was and is an utter nullity; and there is no legal showing in the record, that the defendant J. H. Ferris was indebted to plaintiff or to any one else, or that the plaintiff had any right to have the deed from J. H. Ferris to L. E. Ferris canceled or set aside.
¶4 But there is another reason why the judgment is a nullity. The court found as a fact that J. H. Ferris died on the 6th day of February, 1934, and prior to the trial of the case. This fact was brought to the attention of the trial court and proceedings should have been halted until a representative of the decedent had been *233 substituted in his place. Until this was done the court had no authority to adjudicate the rights of decedent’s estate. It is the contention of the plaintiff that the deed to E. E. Ferris was void, and that as against plaintiff no title ever passed to her. This being the case upon the death of J. H. Ferris the title to the property involved, at once vested in his heirs, subject, of course, to the rights of his creditors. Plaintiff' presumably is a creditor, but not necessarily the only creditor, and certainly not a preferred creditor. The record shows that his widow is still living. She may be entitled to exemptions from the estate or to' support money, either of which constitutes a claim against the estate superior to that of plaintiff, if plaintiff is entitled to recover at all.
¶5 For the foregoing reasons the appellant is entitled to a reversal, and it is not necessary to decide the other questions submitted.
¶6 The judgment and order appealed from should be reversed.