MITCHELL SMITH, Appellant, v. BIMINI INCOME PROPERTIES, INC. (a Corporation), et al., Respondents

[Civ. No. 9241. Second Appellate District, Division Two. May 7, 1934.] MITCHELL SMITH, Appellant, v. BIMINI INCOME PROPERTIES, INC. (a Corporation), et al., Respondents. Andrew J. Copp, Jr., for Appellant. George L. Greer for Respondents. [MAJORITY — ARCHBALD, J., pro tem.] ARCHBALD, J., pro tem. Motion to dismiss an appeal from a judgment in favor of defendants in an action for damages for personal injuries suffered by plaintiff, allegedly due to defendants’ negligence. The ground of the motion is the death of appellant. The motion and supporting affidavit were served on appellant’s attorney, who has not appeared nor controverted such statement. We therefore must assume that it is true. No citation of authority is necessary to show that such an action does not survive. “Actio personalis moritur cum persona’’ is a legal maxim that has come down to us from the earliest days of the common law (Krammer v. San Francisco etc. Ry. Co., 25 Cal. 435), and it has not been changed by statute. (Fowden v. Pacific Coast Steamship Co., 149 Cal. 151 [86 Pac. 178].) Appeal dismissed. Stephens, P. J., and Craig, J., concurred.