Kilgore v. Yarnell

• Decision Date: 13 July 1909
• Citation: 103 P. 698,24 Okla. 525,1909 OK 179
• Parties: KILGORE v. YARNELL et al.
• Court: Oklahoma Supreme Court

103 P. 698

24 Okla. 525, 1909 OK 179

KILGORE v. YARNELL et al.

Supreme Court of Oklahoma

July 13, 1909

Syllabus by the Court.

A petition in error was filed and summons in error issued 11 days before the expiration of one year from the making of the order appealed from. The summons in error was served on one of the defendants in error two days before the expiration of one year from the making of such order. On the sixteenth day after the expiration of such year, an alias summons in error was issued to the attorney of record of the other defendant in error, which was returned as having been served on the twentieth day after the expiration of such year and on the thirty-first day after the date on which the petition in error and case-made were filed with the clerk of the Supreme Court and the original summons was issued thereon. Held, that such proceeding in error was commenced within one year from the date of the making of the order appealed from, as required by section 4748, Wilson's Rev. & Ann. St. 1903, following Thompson v. Wheeler & Wilson Mfg. Co., 29 Kan. 479, and School District No. 39 v Fisher (Okl.) 99 P. 646.

Where the plaintiff makes application in proper form, and within one year from the date of the death of the defendant, for a revivor of the action against his representative, the order must be granted as a matter of right, not being dependent on the discretion of the court or of the judge thereof.

Where a proceeding in error is instituted in the court by the plaintiff in the court below, as plaintiff in error here against the deceased defendant and the administratrix of his estate, as defendants in error, the action not having been revived against such representative in the court below, nor any consent having been given in such court to such revivor nor any summons or notice having issued as required by section 4618, Wilson's Rev. & Ann. St. 1903, and 12 months having elapsed from the date of the order complained of, held that, the administratrix not having been made a party in any way to the proceedings below, this court has not jurisdiction to review such order.

Error from District Court, Caddo County.

Action by W. S. Kilgore against Thomas F. Yarnell and others. Judgment for defendants, and plaintiff brings error, and plaintiff moves to dismiss the petition in error. Dismissed.

A. T Boys and John H. Venable, for plaintiff in error.

A. J. Morris, for defendants in error.

WILLIAMS J.

In this case the order sought to be reviewed was made on the 18th day of April, 1907, and on the 7th day of April, 1908, a petition in error and case-made were filed in this court. On the same day a præcipe for summons was filed with the clerk and summons issued thereon. On April 17, 1908, said summons was returned, showing service on Mrs. A. M. Yarnell, as administratrix, on April 16, 1908. On the 4th day of May, 1908, an alias summons was issued to A. J. Morris, attorney of record for Thomas F. Yarnell, deceased, which was returned on the 8th day of May, 1908, as having been served on the 7th day of May, 1908.

The question arises as to whether or not said proceeding in error was commenced in this court within one year after the making of the order complained of. In this case the summons was issued on the same day the petition in error was filed, which was before the expiration of one year from the making of the order. The plaintiff in error, ascertaining that the manner of service was not in accordance with the requirements of the statute, immediately, to wit, on May 4, 1908, caused an alias summons to be issued, which was within 60 days from the date of the filing of the petition and case-made and the issuance of the original summons thereon, and said alias summons was served on the 7th day of May, 1908, being the thirty-first day after the issuance of the original summons in error.

In the case of Thompson v. Wheeler & Wilson Mfg. Co., 29 Kan. 478 (2d Ed. 341), the court said: "A motion was made for a new trial on November 23, 1881. The motion was heard and denied on December 1, 1881, and the case was filed in this court on November 28, 1882. A summons was issued on the same day, and made returnable on December 8, 1882. The summons was served by a deputy sheriff of Cowley county (the county from which the case was brought), upon one D. F. Best, the agent of the defendant in error, in that county. This service, it is admitted by the parties was not a good service. This summons was returned to the clerk of the Supreme Court, and, as soon thereafter as the plaintiffs in error ascertained the manner in which the service was made, they ordered an alias summons to be issued. This alias summons was issued on December 28, 1882, and made returnable on January 8, 1883. It was served, however, on December 30, 1882, upon S.D. Pryor, the attorney of record for the defendant in error. This last service of summons, it is admitted, was a good service, provided the summons could be legally served at that time." On page 481 (2d Ed. 343), the court further said: "After a careful consideration of this question, we have come to the conclusion that where a bona fide attempt to commence a proceeding in error is made by filing a petition in error and case-made, as was done in the present case, and having summons issued thereon, such act should be deemed and held to be equivalent to the commencement of such proceeding in error, provided, of course, that the plaintiff in error should faithfully, properly, and diligently follow up his attempt by obtaining service upon the defendant in error within 60 days after the filing of the petition. We would therefore think that the date of the commencement of the present proceeding in error should be held to be November 28, 1882, when the petition in error was filed, and when the original summons was issued; and, as the petition in error was filed and the original summons issued within less than one year after the motion for a new trial was overruled, although more than one year after the judgment was rendered, we think the Supreme Court may consider and determine every question involved in the ruling and determination of the trial court in overruling the motion for a new trial. ***" The case of Thompson v. Wheeler Mfg. Co., supra, is cited with approval and followed by this court in the case of School District No. 39 v. Fisher, 99 P. 646.

The petition in error and case-made having been filed in this court and summons in error issued thereon within 12 months from the date of the rendering of the order complained of, and the alias summons having been issued and properly served within 60 days from the date of the filing of said petition in error and case-made and the issuance of the original summons thereon, we conclude that the proceeding in error in this case was commenced in this court, if it was permissible to have the service, under the circumstances, on the administratrix and the attorney of record of the deceased defendant within the time required by law, and there is nothing in this holding that contravenes any of the decisions, either of this court or of the Supreme Court of the territory of Oklahoma. See School District No. 39 v. Fisher, 99 P. 646; Court of Honor v. Wallace et al., 102 P. 111; McMurtry v. Byrd et al., 101 P. 1117, and Divine v. Harmon et al. (recently decided by this court, but not yet officially reported) 101 P. 1125; Hebeison v. Hatchell, 17 Okl. 260, 87 P. 643; Wedd v. Gates et al., 15 Okl. 602, 82 P. 808; Hoffman v. Board of Commissioners, 8 Okl. 225, 57 P. 167; Ryland v. Coyle, 7 Okl. 226, 54 P. 456; Keokuk Falls Improvement Co. v. Beale, 4 Okl. 712, 47 P. 481; Blanchard v. United States, 6 Okl. 587, 52 P. 736; Vandervoort v. Board of Commissioners, 8 Okl. 227, 57 P. 167.

Section 4623, Wilson's Rev. & Ann. St. 1903 (chapter 66, art. 19, § 425, Code Civ. Proc.), provides: "An order to revive an action against the representatives or successor of a defendant shall not be made without the consent of such representatives or successor, unless in one year from the time it could have been first made." The question necessarily arises as to when an order of revivor could have been first made in this case. The record recites that the defendant, through his attorney, "announced ready for trial, and the plaintiff announced that he was not ready for trial, and asked that the cause be continued for the purpose of having the action revived in the name of the administratrix of the estate of the defendant, who is now deceased; and it appearing to the court that the defendant died on the 22d day of January, 1907, and that on the 15th day of February, 1907, an administratrix of the estate of the defendant Thos F. Yarnell, deceased, was duly appointed and qualified, and that 62 days have elapsed since the appointment of the administratrix, and plaintiff being the appellant herein, and having taken no steps whatever to have the action revived in the name of the administratrix, and the court is of the opinion that he has not prosecuted his appeal herein with due diligence, and that he is therefore not entitled to such continuance, *** and upon motion of A. J. Morris, attorney for defendant, to dismiss plaintiff's said appeal, it is by the court ordered, considered, and adjudged that said appeal be dismissed, and the cause remanded to the probate court of Caddo county, from which said appeal was taken, for further proceeding in said cause as required by law." On the 17th day of April, 1907, the plaintiff moved to reinstate said cause, which motion was denied.

In the case of Mawhinney et al. v. Doane et al., 40 Kan 683, 20 P. 488, decided by the Supreme Court of that state prior to the adoption of the Civil Code of Procedure of Kansas by the Legislature of the territory of Oklahoma,...