Chouteau v. Hoss

• Decision Date: 18 May 1926
• Docket Number: Case Number: 15970,Case Number: 15971
• Citation: 1926 OK 471,246 P. 844,118 Okla. 76
• Parties: CHOUTEAU v. HOSS et al. SOLDANI et al. v. HUDSON, Adm'r, et al.
• Court: Oklahoma Supreme Court

1926 OK 471

246 P. 844

118 Okla. 76

CHOUTEAU v. HOSS et al.

SOLDANI et al. v. HUDSON, Adm'r, et al.

Case Number: 15970

Case Number: 15971

Supreme Court of Oklahoma

Decided: May 18, 1926

Syllabus

¶0 1.Pleading -- Admissions--Settlements of Rights.

Where a party in interest in an action, by her written pleading, acknowledges full settlement of her rights to her interest in the subject-matter of the action, she and her successors, or heirs, are thereafter precluded from asserting any further claim to her interest involved in the action.

2.Abatement and Revival--Death of Plaintiff in Action to Recover Real Estate.

Where the plaintiff to an action to recover real estate dies while said action is pending, the action must be revived in the name of his successors, or heirs, and not in the name of his administrator.

3.Same--Time for Revival--Statute Mandatory.

Section 837,Comp. Stats. 1921, fixing one year as the time within which an action may be revived in the names of the representatives or successors of the plaintiff, is not a mere limitation upon a remedy, but conditions the very right to revive; and parties seeking to avail themselves of its benefits must strictly comply with its terms.

4.Same--Action Barred with Failure to Revive in One Year.

Where the plaintiff died February 7, 1912, and, without the consent of the defendants, one of the heirs to the real estate, the subject of the action, sought to revive the action in his name on March 24, 1924, held, that action was barred under the one-year clause contained in section 837,Comp. Stats. 1921.

5.Same--Bar of Statute not Affected by Infancy of Heir.

Section 837,Comp. Stats. 1921, providing for the revivor of an action within one year from the death of the original plaintiff, contains no saving clause in favor of an infant, and this court cannot ingraft any such exception upon it.The infancy of the party, seeking to be made plaintiff, existed at the time the right to revive accrued and such infancy does not postpone the running of the statute.

6.Limitations of Actions--Exemption of Infants Dependent Solely on Statutes.

The exemptions from the operation of statutes of limitation usually accorded to infants do not rest upon any general doctrine of the law that they cannot be subjected to their action, but, as a general rule upon express language in those statutes giving them time after majority to assert their rights.

7.Abatement and Revival--Time for Revival--Statutes Harmonized.

Section 223,Comp. Stats 1921, is not in conflict with section 837,Comp. Stats. 1921, and both statutes should be given effect, and while the court may allow the action to continue upon such terms and in such manner as may be just under the circumstances presented, it is also imperative that section 837,Comp. Stats. 1921, be complied with and revivor had within the time therein provided in order to permit the action to continue.

8.Pleading--Effect of General Demurrer.

A general demurrer searches the entire record.

Commissioners' Opinion, Division No. 5.

Error from District Court, Osage County; Jesse J. Worten, Judge.

Motion by Louis P. Chouteau to revive action against Raymond H. Hoss, Frank E. Hudson, administrator, and others, to set aside deed; and action by Frank Hudson, administrator, and others against Louis E. Soldani, Louis P. Chouteau, and others to quiet title to same land.From adverse judgments, Louis P. Chouteau, Louis E. Soldani, and others bring error.Causes consolidated.Affirmed.

M. L. Holcomb, for plaintiffs in error.

Grinstead, Scott, Hamilton & Gross, for defendants in error.

THOMPSON, C.

¶1Case No. 15970 has been consolidated with case No. 15971.The first above numbered case was brought in the district court of Osage county, Okla., on August 29, 1910, by Louis P. Chouteau, as plaintiff, against Raymond H. Hoss and Emma Hoss, as defendants, who are defendants in error here, to set aside a deed to 160 acres of land claimed to have been obtained by the above named defendants in error by fraud.

¶2 On November 20, 1918, Charles E. Vandervoort, plaintiff, as grantee of Raymond H. Hoss and Emma Hoss, brought an action, numbered 15971 here, for the same tract of land against Louis E. Soldani, Louis Paul Chouteau, Lillian Hortense Williams, and May B. Henryetta Williams, as defendants, to remove the cloud from his title and to quiet title in himself.

¶3 In case No. 15970, the record shows that Louis P. Chouteau died on February 7, 1912, intestate, leaving surviving him as his sole heirs his widow, Ida M. Chouteau, and one child, Louis Paul Chouteau, Jr., who was, at all times mentioned in this record, a minor under the age of 21 years.Ida M. Chouteau was appointed administratrix of the estate of Louis P. Chouteau deceased, and on July 15, 1912, attempted to, and was allowed to, revive said action, No. 15970, in her name as administratrix.On February 14, 1913, she filed a stipulation, showing that the action had been settled and had the same dismissed, as per written stipulation, with prejudice, on the 3rd day of March, 1913, and on March 3, 1914, a year thereafter, the defendantsRaymond H. Hoss and Emma Hoss conveyed the land in controversy to Charles E. Vandervoort, the plaintiff in case No. 15971.On December 15, 1914, Ida M. Chouteau died intestate as to the land in controversy, leaving surviving her as her sole heir as to said land Louis Paul Chouteau, Jr.On March 27, 1924, Louis Paul Chouteau, Jr., filed his motion in the district court of Osage county, in case No. 15970, to vacate the order of revival in the name of Ida M. Chouteau and the order of dismissal by her and to revive and continue said cause in his name.That on the 7th day of November, 1922, Charles E. Vandervoort, plaintiff in case No. 15971, died intestate, leaving surviving him as his sole and only heirs at law Lula H. Vandervoort, Elizabeth A. Lillie Vandervoort, Charles E. Vandervoort, Jr., and James A. Vandervoort.On the 8th day on March, 1923, Frank E. Hudson was appointed the administrator of the estate of Charles E. Vandervoort, and cause No. 15971 was revived in the name of the administrator and the heirs, above named, of Charles E. Vandervoort, on September 4, 1923.

¶4 All of the above recitals appear in the pleadings of the parties to these two separate actions, and it is admitted by the attorneys for the parties in their briefs that said recitals are correct.

¶5 On October 7, 1921, a general demurrer of appellants was filed to the pleadings of the appellees, setting up the above facts and challenging the right of recovery of the appellees in causes No. 15970andNo. 15971; and, on the 27th day of May, 1924, the demurrer of the appellants in case No. 15971 and Louis Paul Chouteau, Jr., in cause No. 15970 was by the trial court overruled and exception reserved by them, and the parties chose to stand upon said demurrer and refused to plead further, and the trial court rendered judgment upon oral motion of the appellees in cases No. 15970andNo. 15971.The court rendered judgment in their favor, that the title to the lands be quieted and confirmed in them, their successors and assigns, from which judgment of the court the cause comes regularly upon appeal to this court for review by Louis Paul Chouteau, Jr., by his guardian ad litem, R. H. Laverly, in cause No. 15970, and by Louis E. Soldani and by Louis Paul Chouteau, Lula H. Williams, and May B. Henryetta Williams, minors, by their guardian, R. H. Laverly, and their guardian ad litem.M. L. Holcombe, in case No. 15,971, appellants.

¶6 Two assignments of error are presented in the brief of attorney for appellants, which are as follows:

"(1) Error of the court in denying the motion of Louis P. Chouteau, Jr., a minor, by his guardian, R. H. Laverly, to vacate the purported order of revival in cause No. 15970, in the name of Ida M. Chouteau, administratrix of the estate of Louis P. Chouteau, deceased, and the purported dismissal thereof her, and to revive and continue the same in the name of Louis P. Chouteau Jr., a minor, by his guardian, R. H. Laverly,

"(2) Error of the court in refusing to sustain the demurrer of the plaintiffs in error in cause No. 15971, and in rendering judgment in favor of the defendants in error therein."

¶7 Attorneys for appellees, in support of said judgment, in their brief present the same under four propositions, which are as follows:

"(1) The right of Louis P. Chouteau, Jr., to revive the action of Louis P. Chouteau, Sr., v. Emma Hoss et al., under chapter 3, art. 27, C. O. S., 1921, is barred because it was not made within one year from the death of Louis P. Chouteau, Sr.

"(2)Plaintiff in error failed to allege facts and circumstances entitling him to continue the cause under section 223,C. O. S. 1921.

"(3) The defense alleged in plaintiff in error's answer in the action of Frank Hudson, administrator, et al. v. Louis E. Soldani et al., was at the time of the filing of the answer barred by the statute of limitation, and this fact appeared on the face of the answer, and the court properly sustained the demurrer.

"(4) A general demurrer searches the record."

¶8 The pleadings of the appellants in these two cases show upon their face, that the action in the first case was begun by Louis P. Chouteau, and that while the said cause was pending he died on February 7, 1912, leaving his wife and son, as heretofore stated in this opinion, as his sole and only heirs, and it is argued on part of the appellants that the attempted revival of the cause by Ida M. Chouteau, as administratrix of the estate of Louis P. Chouteau, deceased, was without authority in law, this being an action involving real property belonging to the estate of Louis P. Chouteau, deceased, and that such a pending action could only be revived in the name of his heirs and not in the name of his administratrix.This is conceded, and correctly so, by the attorneys for appellees.SeeGlazier v. Heneybuss, 19 Okla. 316, 91 P. 872;Zahn v. Obert...