Barrick v. Smith

• Decision Date: 13 January 1920
• Docket Number: 9531.
• Parties: BARRICK et al. v. SMITH et al.
• Court: Oklahoma Supreme Court

187 P. 199

77 Okla. 163, 1920 OK 13

BARRICK et al. v. SMITH et al.

No. 9531.

Supreme Court of Oklahoma

January 13, 1920

Rehearing Denied Feb. 17, 1920.

Syllabus by the Court.

Where a review of the proceedings of the trial court is sought by means of a case-made, it or a copy thereof having been served upon the attorney of the adverse party after the death of such party, without any revivor first having been had, such service is a nullity, and will operate to prevent the case-made from being considered in this court.

Where a proceeding in error is sought to be instituted in this court by the losing party in the trial court against the deceased adverse party and the administratrix of his estate, as defendants in error, the action not having been revived against such representative in the court below, nor any consent having been given in such court to such revivor, nor any summons or notice having been issued as required by law and six months having expired from the date of the order complained of, held that, the administratrix not having been made a party in any way to the proceedings below this court has no jurisdiction to review such order.

Error from District Court, Woods County; W. C. Crow, Judge.

Action by J. Lee Smith against W. R. Barrick and others. Judgment for plaintiff, motion for new trial denied, and after plaintiff's death, and without any revivor, defendants attempted to appeal, on petition in error and case-made, with suggestion of plaintiff's death, and motion to revive in the name of Rebecca Smith, his administratrix, and Rebecca Smith and another, as sole heirs. Appeal dismissed.

E. W Snoddy and J. P. Grove, both of Alva, for plaintiffs in error.

R. M. Chase and A. J. Stevens, both of Alva, and F. E. Severn, of Waynoka, for defendants in error.

JOHNSON J.

This cause comes on to be heard upon a motion to dismiss the appeal filed by the defendants in error, upon the grounds that the proceeding in error was not commenced within the time limited by law. The record discloses that the final judgment sought to be appealed from, that of the overruling by the court of the defendant's motion for a new trial, was rendered on April 23, 1917. Thereafter, on May 25, 1917, the plaintiff died. There was no attempt made in the court below to revive the action. On September 23, 1917, service of case-made was acknowledged by the attorneys of record of the deceased plaintiff. One day before the expiration of six months from the date of the judgment attempted to be appealed from had expired, the defendants below, plaintiffs in error, filed with the clerk of this court their petition in error, with case-made attached, and there was attached thereto, marked "Exhibit A," a written suggestion of the death of the plaintiff and motion to revive in the name of Rebecca Smith, administratrix, and Rebecca Smith and Marvin L. Smith, sole heirs, of the deceased plaintiff, praying that summons in error issue to each of them. The record discloses that Rebecca Smith was appointed administratrix seven days thereafter, to wit, October 29, 1917. The six months allowed by law in which an appeal might be perfected had expired on October 23, 1917. On January 17, 1918, waiver of summons in error and a general appearance was entered by Rebecca Smith, administratrix of the estate of J. Lee Smith, deceased, who was plaintiff below. It further appears from the record that on November 27, 1917, an order was made in this court in said cause, reviving the action in the name of Rebecca Smith, administratrix of the estate of J. Lee Smith, deceased. At that time no appearance had been made by her in her representative capacity. On February 26, 1919, the motion to dismiss the appeal upon the aforesaid grounds was filed by Rebecca Smith, which was duly verified, reciting that she appeared for the purpose of the motion only, notice of the filing of which motion was served upon the attorneys for plaintiff in error on February 20, 1919, which motion recited the foregoing facts, and recited, further, that the movant, as widow, and Marvin L. Smith, a son, were the sole heirs at law and representatives of the deceased, which motion was by this court overruled on May 27, 1919.

Counsel for defendant in error in their brief call our attention to this record, and urge that this court is without jurisdiction of the case upon its merits, and urge that the appeal herein be dismissed. This action did not abate by the death of the plaintiff. R. L. 1910, § 5280. Sections 5285, 5290, and 5299, R. L. 1910, provide:

Section 5285: "When one of the parties to an action dies, or his powers as a personal representative cease before the judgment, if the right of action survive in favor of or against his representatives or successors, the action may be revived and proceed in their names."

Section 5290: "Upon the death of the plaintiff in an action, it may be revived in the names of his representatives, to whom his right has passed. Where his right has passed

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