Huddleston v. Wallow
| Decision Date | 11 May 1926 |
| Docket Number | 17143. |
| Citation | 246 P. 585,117 Okla. 259,1926 OK 456 |
| Parties | HUDDLESTON v. WALLOW et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Chapter 219, Sess. Laws 1917 (Comp. Stat. 1921, § 782), was not intended to relax or abrogate any existing requirements of the law concerning the preparation, service, settlement, and filing of a case-made for appeal, but relates solely to the method of making all parties of record in the trial court parties of record in this court, and prescribes the kind and character of notice which shall be effective for this purpose.
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.
Commissioners' Opinion, Division No. 1.
Appeal from District Court, Okfuskee County; John L. Norman, Judge.
Action by Peter Wallow and others against C. T. Huddleston to recover possession of certain land and to quiet title thereto. Judgment for plaintiffs, and defendant appeals. The named plaintiff died after trial, and the case-made was served on his attorneys. Dismissed.
J. B Patterson, Logan Stephenson, and C. T. Huddleston, all of Okemah, for plaintiff in error.
Anglin & Stevenson, of Holdenville, for defendants in error.
In this case judgment was entered in the trial court April 6, 1925 and motion for new trial was overruled September 21, 1925. By appropriate and timely orders the time for preparing and serving case-made was extended to January 19, 1926. A petition in error was filed in this court January 20, 1926 to which was attached a purported case-made. March 31, 1926 a motion to dismiss was filed upon the ground that the purported case-made is a nullity. Response to this motion was filed April 7, 1926, and on April 13, an order was entered denying the motion to dismiss.
The cause comes on for further hearing now upon the motion of plaintiffs below to vacate and set aside the order denying the motion to dismiss, leave to file which was granted by the court April 20. 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 revivor and a renewal of their authority by the administrator or heirs, is a nullity and wholly ineffectual to present alleged errors occurring during the trial. Kilgore v. Yarnell et al., 24 Okl. 525, 103 P. 698; May et al. v. Fitzpatrick et al., 35 Okl. 45, 127 P. 702; Barrick et al. v. Smith, 77 Okl. 163, 187 P. 199; City of Anadarko v. McKee, 89 Okl. 166, 214 P. 700.
The judgment in the instant case is a joint judgment in favor of plaintiffs as the sole and only heirs of Lucy Wallow, deceased. It was therefore necessary that the case-made be served upon each of them, or upon the attorneys of record for each of them. Grimes v. West, 47 Okl. 436, 149 P. 135; Phillips v. Hackler, 49 Okl. 586, 153 P. 863; Barrows et al. v. Cassidy et al. (Okl. Sup.) 239 P. 581 ().
Defendant practically concedes the correctness of both rules above announced, but seeks to evade their force and effect by the contention that the provisions of chapter 219, Sess. Laws 1917 (Comp. Stat. 1921, § 782), has changed the rule and effected a new and different procedure on appeal; that notice in open court of intention to appeal automatically makes all parties to the record in the trial court parties of record in this court. The language of the act relied on is clear. No relaxing...
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