Barrick v. Smith, Case Number: 9531
| Court | Supreme Court of Oklahoma |
| Writing for the Court | JOHNSON, J. |
| Citation | 1920 OK 13,187 P. 199,77 Okla. 163 |
| Parties | BARRICK et al. v. SMITH et al. |
| Docket Number | Case Number: 9531 |
| Decision Date | 13 January 1920 |
1920 OK 13
187 P. 199
77 Okla. 163
BARRICK et al.
v.
SMITH et al.
Case Number: 9531
Supreme Court of Oklahoma
Decided: January 13, 1920
¶0 1. Appeal and Error--Service of Case-Made on Attorney for Deceased Defendant in Error.
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.
2. Same--Parties--Failure to Revive Action in Lower 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 not jurisdiction to review such order.
E. W. Snoddy and J. P. Grove, for plaintiffs in error.
R. M. Chase, A. J. Stevens, and F. E. Severn, for defendants in error.
JOHNSON, J.
¶1 This cause comes on to be heard upon a motion to dismiss the appeal filed by the defendants in error, upon the ground that the proceeding in error was not commenced within the time limited by law.
¶2 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...
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Dixon v. Wright, Case Number: 26038
...fact was not discovered by plaintiff until after the filing of the petition in error and case-made in this court. ¶4 In Barrick v. Smith, 77 Okla. 163, 187 P. 199, this court said: "This court has held that, where a review of the proceedings of the trial court is sought by means of a case-m......
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Huddleston v. Wallow, Case Number: 17143
...Kilgore v. Yarnell et al., 24 Okla. 525, 103 P. 698; May et al. v. Fitzpatrick et al., 35 Okla. 45, 127 P. 702; Barrick et al. v. Smith, 77 Okla. 163, 187 P. 199; City of Anadarko v. McKee, 89 Okla. 166, 214 P. 700. ¶4 The judgment in the instant case is a joint judgment in favor of plainti......
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Bd. of Ed v. Liberty Nat. Bank, Case Number: 32164
...was substituted as party plaintiff in lieu of Switzer. A motion to dismiss the appeal, based upon the rule announced in Barrick v. Smith, 77 Okla. 163, 187 P. 199, and Dixon v. Wright, 177 Okla. 191, 58 P. 2d 114, was filed, but upon consideration thereof the court denied the motion to dism......
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Nichols v. Beardsley, Case Number: 20278
...defendant in error." Vaughan v. Seabolt, 136 Okla. 112, 277 P. 643; City of Anadarko v. McKee, 89 Okla. 166, 214 P. 700; Barrick v. Smith, 77 Okla. 163, 187 P. 199; Young v. La Rue, 49 Okla. 252, 152 P. 340; Nichols v. Beardsley, 134 Okla. 139, 272 P. 447. ¶2 The plaintiff in error has resp......
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Dixon v. Wright, Case Number: 26038
...fact was not discovered by plaintiff until after the filing of the petition in error and case-made in this court. ¶4 In Barrick v. Smith, 77 Okla. 163, 187 P. 199, this court said: "This court has held that, where a review of the proceedings of the trial court is sought by means of a case-m......
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Huddleston v. Wallow, Case Number: 17143
...Kilgore v. Yarnell et al., 24 Okla. 525, 103 P. 698; May et al. v. Fitzpatrick et al., 35 Okla. 45, 127 P. 702; Barrick et al. v. Smith, 77 Okla. 163, 187 P. 199; City of Anadarko v. McKee, 89 Okla. 166, 214 P. 700. ¶4 The judgment in the instant case is a joint judgment in favor of plainti......
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Bd. of Ed v. Liberty Nat. Bank, Case Number: 32164
...was substituted as party plaintiff in lieu of Switzer. A motion to dismiss the appeal, based upon the rule announced in Barrick v. Smith, 77 Okla. 163, 187 P. 199, and Dixon v. Wright, 177 Okla. 191, 58 P. 2d 114, was filed, but upon consideration thereof the court denied the motion to dism......
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Nichols v. Beardsley, Case Number: 20278
...defendant in error." Vaughan v. Seabolt, 136 Okla. 112, 277 P. 643; City of Anadarko v. McKee, 89 Okla. 166, 214 P. 700; Barrick v. Smith, 77 Okla. 163, 187 P. 199; Young v. La Rue, 49 Okla. 252, 152 P. 340; Nichols v. Beardsley, 134 Okla. 139, 272 P. 447. ¶2 The plaintiff in error has resp......