City of Anadarko v. Mckee
| Decision Date | 17 April 1923 |
| Docket Number | Case Number: 13015 |
| Citation | 1923 OK 210,89 Okla. 166,214 P. 700 |
| Parties | CITY OF ANADARKO v. McKEE, Guardian. |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error -- Parties -- Failure to Revive Cause.
Where the prevailing party dies while the cause is still pending in the trial court, and thereafter the losing party seeks to prosecute a proceeding in error to the Supreme Court without having the cause revived in the trial court, the petition in error filed in said proceeding is a nullity for want of a party defendant in error.
2. Same -- Invalidity of Case-Made -- Service.
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 reviver first having been had, such service is a nullity, and will operate to prevent the case-made from being considered in this court.
Error from District Court, Caddo County; Will Linn, Judge.
Action by John McKee, guardian of Edith McKee, against the City of Anadarko. Judgment for plaintiff, and defendant brings error. Dismissed.
Grover C. Wamsley and C. Ross Hume, for plaintiff in error.
Morris & Jameson, for defendant in error.
¶1 Came on to be heard the defendant in error's motion to dismiss the appeal in the above entitled and numbered cause upon two grounds, and inasmuch as the second ground of the motion must be sustained and the appeal dismissed, it will not be necessary to notice the first ground of the motion, which is more or less complicated, and it is not likely that an exact situation is likely to occur in any other case as there stated, so we will not take time to consider the first ground.
¶2 The record discloses that on the 23rd day of September, 1921, the defendant in error, John McKee, guardian of Edith McKee, minor, recovered a verdict in the district court of Caddo county against the city of Anadarko in a personal injury action in the sum of $ 6,000, upon which the court rendered judgment on the 23rd day of September thereafter with 6 per cent. interest from March 3, 1920; from which judgment the defendant, city of Anadarko, has appealed to this court. The appeal was filed in this court on February 3, 1922.
¶3 On October 29, 1921, the minor, Edith McKee, died of the injuries she sustained on account of the alleged negligence of the plaintiff in error; an administrator of her state was appointed soon after the judgment was rendered; the action was not revived in the trial court and the deceased's personal representatives are not parties to this appeal; the cause has never been revived in the name of the heirs or representatives of the said minor, nor have they been made parties to this proceeding in error; more than one year from the time it could have first been revived has elapsed. This constitutes the second ground of the defendant in error's supplemental motion to dismiss the appeal herein.
¶4 The plaintiff in error's notice of the settling and signing of the purported case-made herein was served on counsel of record in the court below for the deceased minor on the 23rd day of March, 1922.
¶5 Therefore, for the reason stated, counsel for the defendant in error insists that the purported case-made is a nullity and confers no jurisdiction of appeal upon this court.
¶6 In this contention of the counsel we concur.
¶7 In the case of Young v. La Rue, 49 Okla. 252, 152 P. 340, this court stated in the syllabus as follows:
"Where the prevailing party dies while the cause is still pending in the trial court, and thereafter the losing party seeks to prosecute a proceeding in error to the Supreme Court without having the cause revived in the trial court, the petition in error filed in said proceeding is a nullity for want of a party defendant in error." Barrick et al. v. Smith et al., 77 Okla. 163, 187 P. 199, and cases there cited.
¶8 Upon the death of Edith McKee, the powers of John McKee as her guardian ceased, and all the interest of the deceased in the judgment passed to her personal representatives, and they alone are the real parties in interest.
¶9 The rights and powers of the guardian being terminated by the death of the ward, he could not take any steps to collect the judgment, he could not have prosecuted a proceeding in error had the judgment been for the defendant, nor can a proceeding in error he prosecuted against him as guardian of the deceased, for the reason that deceased persons are not and cannot be represented by guardians.
¶10 The proposition that the powers of the guardian were terminated by the death of the deceased is fundamental.
¶11 In Barrett v. Provincher, 39 Neb. 773, 58 N.W. 292, the Supreme Court of Nebraska said:
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