Powers v. Holder
| Decision Date | 29 May 1934 |
| Docket Number | Case Number: 20593 |
| Citation | 1934 OK 333,33 P.2d 193,168 Okla. 367 |
| Parties | POWERS v. HOLDER et al. |
| Court | Oklahoma Supreme Court |
¶0 Appeal and Error--Dismissal of Appeal for Want of Necessary Party Where Appeal Without Revival After Death of Party.
Where, after judgment, one of the parties to an action dies, and there is ample time in which to revive the action before the expiration of the statutory period for filing an appeal, or to substitute another who has acquired rights in the subject-matter of the litigation, and the action is not revived and no substitution made in the trial court, an appeal from such judgment to this court will be dismissed for want of necessary party to the appeal.
Appeal from District Court, Grady County; Will Linn, Judge.
Action by T. E. Powers against. Caline Holder et al. From adverse judgment, plaintiff appeals. Dismissed.
R. E. Davenport and Blanton, Osborn & Curtis, for plaintiff in error.
Bailey & Hammerly, for defendants in error.
¶1 This cause is before this court on a motion of the defendants in error to dismiss the appeal.
¶2 The cause was tried on February 8, 1929, and a judgment was rendered by the court on February 9, 1929. A motion for new trial was filed and overruled on the same day. On February 14, 1929, the plaintiff died. A supersedeas bond was filed on February 22, 1929, in the name of the plaintiff, T. E. Powers. On May 4, 1929, the trial court granted the plaintiff additional time in which to make and serve a case-made. On June 5, 1929, the case-made, naming T. E. Powers as plaintiff in error, was served upon the attorneys for the defendants in error. The petition in error was filed in this court on August 1, 1929, naming T. E. Powers as plaintiff in error.
¶3 The six-month period in which to appeal from the order overruling the motion for new trial entered on February 9, 1929, expired on August 9, 1929.
¶4 On September 10, 1929 Anna Powers filed in the trial court what she designated as a "Motion to Revive & for Substitution", wherein she stated that, 110 acres of the land involved herein had been deeded to her by T. E. Powers on February 8, 1929; that the death of T. E. Powers occurred on February 14, 1929, and that he left a will, which had been duly probated, devising all of the land in controversy to his wife, Anna Powers, as sole heir. The instrument concluded:
"Wherefore, the said Anna Powers moved the court that she be substituted as plaintiff or that the action be continued in the name of T. E. Powers, as to the said one hundred ten (110) acres, and that this cause be revived for hearing and in her name as to the balance of the said one hundred eighty (180) acres."
¶5 On November 5, 1929, Anna Powers filed in the trial court her motion styled "Amended Motion for Substitution", setting forth that she had discovered that T. E. Powers before his death had deeded to her all of the land in controversy, and praying "* * * that she be substituted as plaintiff in this cause or that the action be continued in the name of T. E. Powers for the use and benefit of the said Anna Powers. * * *" On September 28, 1929, the defendants Nellie Patterson and Tecumseh Morris filed in the trial court a motion to revive the judgment theretofore rendered against J. W. Hoskins as executor of the last will and testament of T. E. Powers, deceased, and as against Anna Powers, who was the sole beneficiary under the will. The motions for substitution and revivor were heard by the trial court on December 16, 1929. That court ordered that the judgment theretofore rendered in favor of the defendants Nellie Patterson and Tecumseh Morris "* * * be and the same is hereby in all things revived as against J. W. Hoskins as executor of the estate of T. E. Powers, deceased, and as against Anna Powers, sole devisee. * * *" The court's order continued:
"* * * That the said Anna Powers be substituted for the said T. E. Powers in said judgment so rendered on February 9, 1929, said Anna Powers to be fully and completely substituted for said T. E: Powers in this cause.* * *"
¶6 From those recitals it will be observed that the petition in error was filed in this court on August 1, 1929; that the six-month period allowed by law expired on August 9, 1929; that the first paper of any kind pertaining to revivor or substitution was filed in the trial court on September 10, 1929, and that no motion, petition, or other proceeding of any nature was ever filed in this court requesting substitution or revivor.
¶7 On August 12, 1929, the defendants filed in this court a motion to dismiss the appeal upon the ground of lack of a necessary party plaintiff in error. It was alleged that this court is without jurisdiction to entertain the purported appeal. Thereafter the plaintiff filed in this court a motion for permission to withdraw the case-made for correction, and authority was given to withdraw same for correction under the supervision of the trial court. The case-made was withdrawn and the additional proceedings had in the trial court after filing the petition in error in this court were added to the case-made.
¶8 The principal contention presented by the motion to dismiss the appeal is that this court has no jurisdiction to consider an appeal on a record that shows that the person in whose name the appeal was attempted died after judgment, and no revivor or substitution was made during the period provided for appeal.
¶9 The plaintiff in error contends that the statute allows one year in which to revive, and that the revival was perfected within such time.
¶10 The defendants in error contend that the cause should have been revived in the trial court before the appeal was effected and within the six-month period allowed by law for filing an appeal in This court, and that in this case sufficient time intervened for such a revivor or substitution.
¶11 Those contentions have arisen over the meaning of the various sections of the statutes governing the rights of the parties.
¶12 Section 547, O. S. 1931, provides:
"All proceedings for reversing, vacating or modifying judgments, or final orders shall be commenced within six months from the rendition of the judgment or final order complained of; Provided, that 'in case the person entitled to such proceeding be an infant, a person of unsound mind or imprisoned, such person shall have six months, exclusive of the time of such disability, to commence proceedings."
¶13 Section 575, O. S. 1931, provides:
"When one of the parties to an action dies, or his powers as a personal representative cease before the judgment, if the right of action survive in favor of or against his representatives or successors, the action may be revived and proceed in their names."
¶14 Section 583, O. S. 1931, provides:
"An order to revive an action against the representatives or successors of a defendant shall not be made without the consent of such representatives or successors, unless in one year from the time it could have been first made, except as otherwise provided by law."
¶15 In order for this court to obtain jurisdiction on appeal, the proceedings must be commenced in this court within six months from the date of the rendition of the final order or judgment complained of. The six-month period in the instant case expired on August 9, 1929. The proceedings were commenced in this court, if at all, on August 1, 1920, by the filing of the petition in error. If the proceedings in error in this court were valid, then this court had assumed jurisdiction on August 1, 1929, within the six-month period provided by section 547, supra, and the trial court had no jurisdiction to entertain a motion for revivor or for any purpose relating to or affecting the subject-matter appealed from. If this court did not have jurisdiction on August 9, 1929, it could never acquire jurisdiction because the time had expired and the right to appeal was lost by expiration of time.
¶16 In Dooley v. Foreman, 94 Okla. 163, 221 P. 47, the facts were similar to the facts herein. Therein this court held:
¶17 --following Egbert v. St. Louis & S. F. R. Co., 50 Okla. 623, 151 P. 228, and followed by American Investment Co. v. Wadlington et al., 114 Okla. 124, 244 P. 435; Ratzlaff v. State, 122 Okla. 263, 249 P. 934; Cameron et al. v. White et al., 128 Okla. 251, 262, 262 P. 664 P. 664; Wagoner Oil & Gas Co. v. Goad et al., 136 Okla. 29, 275 P. 1036, and Schichtel v. Turinsky et al., 148 Okla. 296, 298 P. 879.
¶18 Can this court take jurisdiction of a cause on appeal, where, after a judgment has been rendered against a party who later dies and no revivor was had before the petition in error was filed in this court, ample time was had for such revivor? This court frequently has given expression on that question.
¶19 In Eisiminger v. Jones et al., 137 Okla. 246, 278 P. 1116, this court held:
"Where, after judgment, one of the parties to an action dies, and there is ample time in which to revive the action before the expiration of the statutory period for filing an appeal, and the action is not revived in the trial court, an appeal from such judgment to this court will be dismissed...
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