Dixon v. Wright

• Decision Date: 10 March 1936
• Docket Number: Case Number: 26038
• Citation: 58 P.2d 114,177 Okla. 191,1936 OK 230
• Parties: DIXON v. WRIGHT et al.
• Court: Oklahoma Supreme Court

1936 OK 230

58 P.2d 114

177 Okla. 191

DIXON v. WRIGHT et al.

Case Number: 26038

Supreme Court of Oklahoma

Decided: March 10, 1936

Syllabus

¶0 APPEAL AND ERROR - Nullity of Case-Made Settled and Signed Without Revivor Proceedings After Death of Prevailing Party.

Where plaintiff obtains a judgment in the trial court and dies thereafter before the case-made is settled and signed, the attorneys formerly representing the deceased plaintiff have no authority to waive the right to suggest amendments to the case-made and to agree to the settling and signing of the case-made, and a case-made settled and signed without revivor proceedings is a nullity and confers no jurisdiction upon this court to review the case.

Appeal from District Court, Carter County; John B. Ogden, Judge.

Action by Eugene Wright against Louis A. Fischl, administrator of the estate of Martha Pratt, deceased, and the Globe Indemnity Company. From an adverse judgment, J. Woody Dixon, intervener, appeals. Dismissed.

Champion, Champion & Fischl, for plaintiff in error.

Sigler & Jackson, for defendants in error.

PER CURIAM.

¶1 The plaintiff in this case filed an action seeking to recover certain funds. Plaintiff in error filed a petition asking that he be adjudged to be the owner thereof. From an adverse judgment, he appeals.

¶2 The judgment in this case was entered on the 12th day of May, 1934. The appeal is from the order overruling the motion for new trial entered May 29, 1934. The appeal was lodged in this court November 28, 1934. The appeal therefore can only be by case-made, duly served, settled, and signed. The case-made was duly served on the 26th day of September, 1934. Notice of settlement was waived November 23, 1934, by Sigler & Jackson, who had represented Eugene Wright. The case was settled by the trial judge dated November 27, 1934, and after the same had been filed on the 28th day of November, 1934, on December 6, 1934, defendants in error moved to dismiss on the ground that on the 3rd day of December, 1934, Dave Wright was appointed administrator of the estate of Eugene Wright, and that no case-made was properly presented to this court for the reason that notice of settlement had not been made upon the representative of Eugene Wright, and therefore the case-made was a nullity. On the 29th day of January, 1935, an order of revivor was entered in this court on the application of the plaintiff in error. At the same time a motion to dismiss was denied without prejudice to the right of the defendants in error to present the same, and at this time they have renewed their motion to dismiss. Eugene Wright died November 18, 1934.

¶3 In the motion filed December 6, 1934, defendant in error admits that the attorneys of record waived notice of settlement, but as an evidence of their good faith state that they did not know that Eugene Wright was dead. That 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-made, it, or a copy thereof, having been served upon the attorneys of one of the parties after the death of such party, without any revivor first having been had, such service is a nullity. May v. Fitzpatrick, 35 Okla. 45, 127 P. 702; Kilgore v. Yarnell, 24 Okla. 525, 103 P. 698."

¶5 In May v. Fitzpatrick, supra, paragraph 1 of the syllabus is as follows:

"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 one of the parties after the death of such party without any revivor first having been had, such service is a nullity."

¶6 In the body of the opinion Mr. Justice Williams said:

"With the death of Mrs. Mary Holmes, the authority of Bond & Melton to act as attorneys in her said case ceased, and any acceptance of service of case-made by them for her was void. Kilgore v. Yarnell, 24 Okla. 525, 103 P. 698; St. Louis & S. F. R. Co. v. Nelson, 31 Okla. 51, 119 P. 625."

¶7 In Huddleston v. Wallow, 117 Okla. 259, 246 P. 585, the syllabus reads:

"Where a successful party in a joint judgment dies before service of case-made, and such case-made is thereafter served upon the attorneys who represented deceased at the trial, such service is a nullity, and such case-made thereafter settled and filed is ineffectual to confer jurisdiction upon this court to review alleged errors occurring at the trial; neither the administrator nor heirs having been brought in by proceedings to revive."

¶8 In the body of the opinion the court said:

"The purported case-made was served upon the attorneys for plaintiffs January 5, 1926, and it is made to appear that Peter Wallow, one of the plaintiffs below, died December 16, 1925, leaving surviving him a widow, Mahala Wallow, and one child, Sallie Wallow, and that there has been no revivor of the action. Upon the death of Peter Wallow the power and authority of the attorneys representing him ceased, and a case-made thereafter served upon them, without an order of

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