Boyes v. Masters
| Decision Date | 21 March 1911 |
| Citation | 114 P. 710,28 Okla. 409,1911 OK 77 |
| Parties | BOYES et al. v. MASTERS et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The right to revive an action under article 19. c. 66 Wilson's St. Okl. 1903, does not depend on the discretion of the court or of the judge making the order, but under the condition and within the time therein limited is a matter of right.
Article 19 of chapter 66 of said statute provides a summary remedy for reviving an action, but the remedy thus provided is not exclusive. The court has power under section 4238 of said statute, in the exercise of sound discretion, to allow the action to be prosecuted against the legal representatives of a deceased party defendant, and allow them to be brought in by supplemental petition, pursuant to section 4348 of said statute.
Where pending an action to foreclose a mortgage, W., the defendant mortgagor, died, leaving him surviving a widow and five children, three of whom were minors, all of whom by attorney appeared, and, after a guardian ad litem had been appointed for said minors, said widow and adult heirs for themselves and said minors by their said guardian, answered; and where after judgment in their favor, proceedings in error therein were commenced by plaintiff in the Supreme Court of Oklahoma Territory, pending which said widow, a coexecutor of the will of said W., died after the submission, but before a decision, of said cause in said court; and where, after mandate to the trial court, plaintiff by supplemental petition filed sought to bring in the remaining executor of W. and her executors as parties defendant, but was met with a motion to dismiss the cause on the ground of failure to revive against said minor heirs of said W., and that more than one year had expired since the death of said widow; and where by amended supplemental petition plaintiff seeks to bring in said heirs, together with said executor of W. and the executors of said widow, as parties defendant-- held, no question of laches raised, and that the court erred in refusing him permission so to do.
The fact of the death of the defendant in error, between the submission and decision of a cause in this court, does not impair the validity of a judgement thereinafter rendered, but this court will, on proper showing, set aside the judgment, recall the mandate, and direct the clerk to refile the opinion and enter judgment in the case nunc pro tunc, as of the date when the same was submitted.
Error from District Court, Noble County; Wm. M. Bowles, Judge.
Action by H. L. Boyes and others against George A. Masters and others. Judgment for defendants, and plaintiffs bring error. Reversed and remanded, with directions.
30XVII(E) Rendition, Form, and Entry of Judgment
30k1184 Entry Nunc Pro Tunc.
Where defendant in error died after a cause was submitted and before it was decided, the decision would be set aside, mandate recalled, and decision rendered nunc pro tunc, as of the date of the submission of the cause, with directions to the clerk to enter the same as of that date.
Harris & Wilson and Claude Nowlin, for plaintiffs in error.
H. B. Martin, for defendants in error.
On November 10, 1902, H. L. Boyes, one of the plaintiffs in error, sued S. A. Wickard, George A. Masters, and the First National Bank of Canute, Kan., in the district court of Noble county, on a certain promissory note for $2,564.75, theretofore made, executed, and delivered to plaintiff by said Wickard and Masters, and to foreclose a certain mortgage upon certain lots in the city of Perry, given plaintiff by Wickard to secure the payment of the same. The First National Bank of Canute, Kan., was alleged in the petition to have some interest in or lien upon the lots junior to the mortgage of plaintiff, and was made a party defendant. The note and mortgage were attached as exhibits to his petition. Later defendants appeared and demurred, pending which the Farmers' & Merchants' Bank, the other plaintiff in error, was, by amended petition, made a party plaintiff. On April 28, 1903, defendants demurred to said amended petition, and the First National Bank of Canute, Kan., filed its answer thereto. On July 1, 1903, the death of S. A. Wickard was suggested, and the action, by consent, was by the court ordered revived against his heirs, Dan K. Wickard, Dora M. Wickard, Sarah K. Wickard, Jessie B. Wickard, Susan F. Wickard, and Robert M. Wickard, the three last named being minors, and a guardian ad litem appointed for them, who accepted the appointment and was sworn and qualified as such then and there in open court. Later all of said adult heirs for themselves, and said minor heirs by their said guardian, filed answers to plaintiffs' amended petition, to which plaintiffs replied. Upon the issues thus joined the cause was tried to the court, and judgment rendered and entered in favor of plaintiffs against the defendant George A. Masters for $3,398.29, interest and principal due on said note. At the same time the court found that the mortgage sought to be foreclosed had been paid; that the defendant the First National Bank of Canute Kansas and said heirs of S. A. Wickard, deceased, were not indebted to plaintiffs, and judgment was entered accordingly.
After motion for a new trial filed and overruled, plaintiffs commenced proceedings in error in the Supreme Court of the territory of Oklahoma. There, on September 6, 1905, the judgment of the district court was reversed, and the cause remanded for a new trial. Boyes et al. v. Masters et al., 17 Okl. 460, 89 P. 198. After the submission and before the decision of the cause in the Supreme Court, to wit, on March 19, 1905, Dora M. Wickard died. As soon as the fact of her death became known to plaintiffs, they, on June 3, 1907, after the return of the mandate, suggested her death in the district court, and it appearing to the court to be true, that she was one of the executors of the last will of S. A. Wickard, that Dan K. Wickard and Sarah (Wickard) Clemens were coexecutors of her last will and testament, and that Dan K. Wickard was then sole executor of the last will and testament of said S. A. Wickard, deceased, it was ordered by the court that Dan K. Wickard and Sarah K. (Wickard) Clemens, as the coexecutors of Dora M. Wickard, be and they were made parties defendant and ordered served with summons, and plaintiffs were given leave to file a supplemental petition, setting forth their cause of action against said defendants.
On June 7, 1907, pursuant to leave thus granted, plaintiffs filed their supplemental petition against the defendants Dan K. Wickard, as sole executor of the last will of S. A. Wickard, deceased, and against Dan K. Wickard and Sarah K. (Wickard) Clemens, coexecutors of the last will of Dora M. Wickard, deceased, and embodied therein their original amended petition and prayed judgment against said defendants as in said original and amended and supplemental petitions set forth, and for general relief. After service by publication, on September 16, 1907, defendants' attorney appeared and to the court in substance stated that theretofore at the time of the revivor against the heirs of S. A. Wickard, deceased, three of said heirs were minors; that no service of a motion to revive said action had ever been served on them by reason of which said pretended order of revivor against them was void; that after the death of Dora M. Wickard said proceeding in the Supreme Court of the Territory of Oklahoma was not thereafter revived in said court; that all subsequent proceedings in said court were void; that at the time of the revivor of the cause in the district court against the heirs of Dora M. Wickard, deceased, more than one year had elapsed from the time of her death and for that and the further reason that said order of revivor was entered without the consent of the defendants in said action, the same was void; and moved to dismiss the cause at plaintiffs' cost.
On October 11, 1907, plaintiffs brought into court their amended supplemental petition, therein made reference to their petition, amended petition, and supplemental petition, made the contents thereof a part of their amended supplemental petition, and asked leave to file the same. After stating therein that at the time the revivor was had against the heirs of S. A. Wickard, deceased, they believed the attorneys therein appearing for them had authority so to do, and that said revivor was good; that their opinion then was that said minors could not be bound by consent of their attorneys; that since said attempted revivor all of said heirs, except Robert M. Wickard, had become of age and continued to appear in said cause; that neither plaintiffs nor their attorneys knew of the death of Dora M. Wickard until more than one year thereafter; that she died a nonresident, after which her attorneys continued to appear for her in said cause; that notwithstanding Jessie B. Wickard and Susan F. Wickard have since said attempted revivor appeared as parties defendant in said cause, out of an abundance of caution they are included as such in the amended supplemental petition; that all parties against whom the revivor is sought are nonresidents of the state and claim no interest in the mortgaged property, except as devisee of said S. A. and Dora M. Wickard, deceased; that George A. Masters is the duly appointed and qualified guardian of the person and estate of Jessie B. Wickard, Susan F. Wickard, and Robert M. Wickard. They prayed that said heirs and Dan K. Wickard, as executor of the last will of S. A. Wickard and Dan K. Wickard, and Sarah K. (Wickard) Clemens and George A. Masters, as guardian of said minor heirs of S. A. Wickard, be made parties defendant; that they be required to set up what...
To continue reading
Request your trial