Fabian v. Griesel
| Decision Date | 02 November 1937 |
| Docket Number | Case Number: 27724 |
| Citation | 181 Okla. 137,1937 OK 625,73 P.2d 180 |
| Parties | FABIAN v. GRIESEL, Ex'r. |
| Court | Oklahoma Supreme Court |
¶0 1. APPEAL AND ERROR - Error not Predicable Upon Court's Failure to Order Amendment Absent Formal Request Therefor and Adverse Ruling.
Error cannot be predicated solely upon the court's mere failure to order an amendment in the absence of a formal request therefor by motion or application and an adverse ruling thereon.
2. DISMISSAL - Evidence Unnecessary Where Jurisdictional Defect Apparent From Face of Record.
When a jurisdictional defect is apparent from the face of the record, the court may consider the same without the introduction of evidence dehors the record.
3. EXECUTORS AND ADMINISTRATORS - Executor Objecting to Revivorship Proceedings Had Without Process or Notice Held not to Have Entered General Appearance.
In revivorship proceedings, where acquisition of jurisdiction over the personal representative of the deceased is attempted by order of revivor, without process or notice, and the representative excepts thereto, is thereafter required to answer and at the trial, before any evidence is taken, renews his objections to the jurisdiction by motion to dismiss, having avoided a request for affirmative relief, held, executor had not entered a general appearance 'and subjected himself to the jurisdiction of the court, and the rule of K., O. & G. Ry. Co. v. Martin, 175 Okla. 73, 51 P.2d 577, applies.
4. ABATEMENT AND REVIVAL - Survival and Revival of Actions - Statutory Provisions - One-Year Limitation for Proceedings.
Effect must be given to section 584, O. S. 1931, in revivorship proceedings under section 156, O. S. 1931, as well as revivor had under sections 577, 578. Edwards v. Asher, 95 Okla. 39, 217 P. 869.
5. SAME - One-Year Period Allowed for Revivor After Appointment of Executor.
A lapse of 22 days between the death of the defendant and the appointment of the executor held a reasonable time, and revivor of action is not barred until the expiration of one year after said appointment, under sections 583 and 584, O. S. 1931.
6. SAME - Failure to Take All Necessary Steps to Revive Action Within One-Year Period Held not Ground for Dismissal of Action With Prejudice.
Failure to take all necessary steps to revive an action before the expiration of one year from the time when it might have been revived does not constitute ground for the dismissal of said action with prejudice before it is tried upon its merits, but same may be dismissed without prejudice.
Appeal from District Court, Muskogee County; O.H.P. Brewer, Judge.
Action for damages for malpractice by George W. Fabian against Edward C. Griesel, executor of the estate of C.C. Youmans. From an order of dismissal, plaintiff appeals. Affirmed, with instructions.
E.M. Frye, Chas. Ed. Frye, and Eck E. Brook, for plaintiff in error.
John W. Porter, for defendant in error.
¶1 This action was commenced as one for damages for injuries allegedly incurred by the alleged malpractice of one C.C. Youmans, a dentist of Muskogee. After the petition was filed and before answer day, Dr. Youmans died testate, and the defendant in error was appointed executor of his estate. Thereafter, on October 21, 1935, and April 20, 1936, the plaintiff filed successive motions to revive the action. On August 26, 1936, the Honorable Enloe V. Vernor, presiding judge of one of the divisions of the district court of Muskogee county, sustained said motions and entered an order purporting to revive said cause in the name of "Edward C. Griesel, administrator of the estate of C.C. Youmans, deceased." Thereafter, on August 27, 1936, a motion was filed to vacate said order on the ground that the purported order of revivor entered on August 26th was made without statutory notice of plaintiff's motion having been given and in the absence of counsel for the defendant. On September 24th, this motion to vacate the order of revivor was overruled and exceptions preserved. Again, on September 29th, the motion to vacate was considered, and the court entered an order setting aside its former order overruling motion to vacate its order of revivor and once more overruled the motion to vacate its order of revivor, and exceptions thereto were allowed. In said order the court found "that no notice was ever served or had for the reviver of said action and no consent given therefor by said executor or his said attorney." The executor filed his answer as required by the last order of the court previous thereto and therein he renewed his objection to the purported reviver of said cause on the ground that same was not done as provided by law. On October 17, 1936, when this case came on for trial before a jury, with the Honorable O.H.P. Brewer, judge of another division of the district court of Muskogee county, presiding, counsel for the executor again renewed his objection to the manner in which the cause had purportedly been revived by an oral motion to dismiss, and the court thereupon dismissed the action with prejudice on the ground that no notice of plaintiff's motion to revive had ever been issued or served as provided by law. On October 20th and 23rd, plaintiff filed pleadings designated as "Motion for Rehearing" and "Amended and Supplemental Motion for Rehearing", respectively, and on October 31st, at a hearing on same, the defendant introduced evidence that no statutory notice of plaintiff's motion for a reviver of said action was ever issued and that defendant had never consented to said cause being revived. Thereupon, the court entered orders overruling both the motion and amended motion for rehearing and an order overruling motion to vacate the order of dismissal was also filed. From these orders, plaintiff perfected his appeal to this court.
¶2 1. Plaintiff complains of the trial court having sustained the executor's motion to dismiss for the reason asserted in his first assignment of error that no evidence was introduced in support thereof, and for the further reason asserted in his third assignment of error that he "had the right and was entitled under the law to file a supplementary and amended petition amending and reviving his cause of action in the manner and under the conditions set forth under section 156, O. S. 1931." He contends that an action can be revived under section 156 by order of the court and the filing of an amended petition as well as by proceeding under sections 577 and 578, in which notice of the application for the order must be served upon the adverse party. Oklahoma authorities cited for this contention that the method of reviver provided by the latter statutes is not the only manner in which reviver may be had are Boyes v. Masters, 28 Okla. 409, 114 P. 710; Glenn v. Payne, 48 Okla. 196, 149 P. 1151, and Vaughn v. Osborne, 103 Okla. 59, 229 P. 467. In Southern Surety Co. v. Williams, 105 Okla. 44, 231 P. 293, this rule allowing reviver under the former section upon the filing of amended and supplemental pleadings and the acquisition by the court of jurisdiction over the substituted defendant is also recognized. Counsel for the executor cites no authority overruling the above-mentioned opinions, but contends that when a litigant who applies for revival of an action has notice of the death of the adverse party, "he must proceed under and strictly comply with section 578 of the 1931 Oklahoma Statutes," and cites Edwards v. Asher, 95 Okla. 39, 217 P. 869, and Zahn v. Obert, 60 Okla. 118, 159 P. 298, as authority therefor. With this contention we are unable to agree. A reading of the two opinions cited reveals that section 156, O. S. 1931 (sec. 223, C. O. S. 1921), was not under consideration in either of those cases. It is true that section 156 does provide...
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