Atchison, T. & S.F. Ry. Co. v. Fenton
| Decision Date | 21 December 1915 |
| Docket Number | 4833,4832. |
| Citation | 153 P. 1130,54 Okla. 240,1915 OK 1074 |
| Parties | ATCHISON, T. & S. F. RY. CO. v. FENTON. ATCHISON, T. & S. F. RY. CO. ET AL. v. FENTON. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where an appeal has been dismissed by the Supreme Court upon the ground that the plaintiff in error died during the pendency of the appeal and before the submission thereof, the cause not having been revived during the time allowed therefor by statute, the judgment appealed from abates.
The plaintiff having obtained a judgment in the justice court and the defendant appealing from such judgment to the county court in which court judgment in the same amount is again rendered in favor of the plaintiff and against the defendant the defendant duly perfecting its appeal to the Supreme Court, and thereafter, but before submission of the said appeal, the appellee dies and no revivor is had within the time allowed therefor by statute, the cause of action abates and the judgment appealed from is extinguished, so that no action can be maintained by the heirs or legal representatives of the deceased to recover upon the bond given by the defendant on appeal from the justice court to the county court.
Where the appellee dies while an appeal to the Supreme Court is pending, but before submission of the cause in said court and no suggestion of his death nor motion to revive is filed by legal representative of such person within the year next following his death, and thereafter appellant suggests the death of appellee and offers to consent to revivor, such offer not being accepted by the legal representative of the deceased and the Supreme Court dismissing the appeal on motion of the legal representative of the deceased upon the ground that no revivor was had within the time allowed by law, held, that the appellant and sureties on the supersedeas bond were not liable in an action by such legal representative to recover on said bond.
Commissioners' Opinion, Division No. 5. Error from County Court, Kay County Claude Duval, Judge.
Action by George S. Fenton against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff. On death of plaintiff appeal by defendant was dismissed and Laura J. Fenton, administratrix of the estate of George S. Fenton, deceased was substituted as plaintiff, and action by the administratrix against the Atchison, Topeka & Santa Fé Railway Company and others. From adverse judgments, defendants bring error. Reversed and remanded.
Cottingham & Hayes, George M. Green, and Chas. H. Woods, all of Oklahoma City, and Sam K. Sullivan, of Newkirk, for plaintiffs in error.
W. S. Cline and E. L. Cline, both of Newkirk, for defendant in error.
The original cause of action out of which these two appeals arose was commenced by George S. Fenton in the justice court of Kay county on April 23, 1909, to recover the sum of $100 for the alleged negligent killing of a horse by the defendant railway company. A judgment was obtained by the plaintiff, and the defendant duly perfected its appeal to the county court. The plaintiff obtaining judgment in the county court, the defendant in due time perfected its appeal to the Supreme Court of this state, by filing in said court on April 18, 1910, its petition in error with case-made attached. Said appeal remained pending in the Supreme Court until April 9, 1912, upon which date the court ordered the dismissal of the appeal for the reason that the defendant in error, George S. Fenton, had died on September 10, 1910, and the time allowed for reviving the cause had elapsed. The opinion of the court dismissing the appeal is reported in 32 Okl. 614, 123 P. 169. On May 31, 1912, a motion was filed in said cause in the county court of Kay county by counsel for Laura J. Fenton, administratrix of the estate of George S. Fenton, deceased, suggesting the death of the said George S. Fenton and praying that said Laura J. Fenton, administratrix, be substituted as plaintiff in said action, and that judgment be rendered in her behalf as administratrix against the said defendant as rendered in the original action. Objections to said motion were duly filed by the defendant railway company, setting out the fact that the year permitted for revivor had long since elapsed, and alleging that said judgment was therefore void and could not be revived. These objections were overruled by the court, and a judgment rendered in favor of the said Laura J. Fenton, administratrix, in the same amount as was originally obtained by the deceased, George S.
Fenton, being the sum of $100 and costs of the action. The railway company duly perfected its appeal from said order and judgment of the county court of Kay county, which was given number in this court of 4833.
It is well settled that under the common law no cause of action survived after the death of the plaintiff, whether such death occurred before or after judgment. Therefore the only way in which a cause of action or a judgment may be made effective after the death of the plaintiff who obtained the same is by a compliance with the statutes covering such cases. Our statutes provide that an order to revive an action without the consent of the defendant shall be made within one year from the time "it could have been first made." Rev. Laws 1910, § 5293; Wilson's Statutes, § 4624. The right to revive this cause of action was passed upon by this court in the case of A., T. & S. F. v. Fenton, 32 Okl. 614, 123 P. 169, and is therefore res judicata. In connection with the suggestion of the death of the defendant in error, George S. Fenton, prior to the dismissal of said appeal, the plaintiff in error offered its consent to the revivor at that time. The attorney for the administratrix of the deceased, ignoring the offer to consent to revivor, filed his motion to dismiss upon the grounds that the period of time for revivor had elapsed. The Supreme Court sustained the motion upon that ground and dismissed the appeal. This issue having thus been disposed of finally, did the county court of Kay county have jurisdiction to revive the judgment in that court?
After the death of George S. Fenton the judgment obtained by him in the county court of Kay county became dormant, and the appeal from said judgment was in the same condition. The order of the Supreme Court dismissing the appeal fixed the status of the judgment in the county court from which said appeal was taken. The period of the dormancy of said judgment in the county court was thereby ended, the cause abated, and the judgment formerly rendered was completely extinguished. In 2 Freeman on...
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