Pryor v. Jump

• Decision Date: 25 October 1938
• Docket Number: Case Number: 28323
• Citation: 1938 OK 548,183 Okla. 560,83 P.2d 828
• Parties: Pryor v. Jump
• Court: Oklahoma Supreme Court

1938 OK 548

83 P.2d 828

183 Okla. 560

Pryor v. Jump

Case Number: 28323

Supreme Court of Oklahoma

Decided: October 25, 1938

Syllabus by the Court.

¶0 1. BASTARDS--Cause of Action Against Father for Maintenance of Bastard Child Abated at Death of Father.

A cause of action existing against a reputed father of a bastard child, for support and maintenance of such child, does not survive upon the death of the reputed father.

2. SAME--Upon Death of Father After Final Judgment All Proceedings Abated Preventing Revival in Name of Legal Representative and Further Jurisdiction of County Court.

Where, in a bastardy proceeding, a person has been found by the court to be the father of the bastard child, and a finding and judgment of the court providing for the support of such child has been made and entered by the court and accepted by the legal representative of the child, and thereafter such father dies, all proceedings therein are abated and are not susceptible of being revived in the name of the legal representative so as to give the county court further jurisdiction therein.

Appeal from County Court, Osage County; L. F. Roberts, Judge.

Action by Thelma Camp Jump against Edna Drew Pryor, administratrix of the estate of Antwine (Jack) Pryor, deceased, to modify judgment in bastardy proceedings. From a judgment in favor of the plaintiff, and defendant appeals.

Judgment reversed and cause remanded, with instructions that judgment be set aside and petition be dismissed.

R. A. Barney, of Pawhuska, and C. H. Drew, of Wewoka, for plaintiff in error.

Louis O. Fink, of Pawhuska, for defendant in error.

DAVISON, Justice.

¶1 This is an appeal from a judgment of the county court of Osage county rendered against Edna Drew Pryor, administratrix of the estate of Antwine Pryor, deceased, and against the estate of said deceased, and in favor of Antwine Pryor, a minor, and putative bastard child of Antwine Pryor, deceased.

¶2 The record discloses that bastardy proceedings were instituted in the county court of Osage county against Antwine Pryor, putative father of a bastard child born to Thelma Camp, who is now Thelma Camp Jump. The county court found Antwine Pryor to be the father of the child, who was also named Antwine Pryor. This judgment was appealed to this court and affirmed. Pryor v. State ex rel. Camp, 170 Okl. 40, 38 P.2d 923. On April 23, 1934, the county court of Osage county rendered judgment against Antwine Pryor in the sum of $1,200 for the support of this child.

¶3 Antwine Pryor, the father, died July 20, 1936 and Edna Drew Pryor, his wife, was appointed as administratrix of his estate. The estate was duly administered. There was an unpaid balance of $315 on the judgment at the time of the death of the deceased. A claim for said amount was duly presented to the administratrix and allowed. Antwine Pryor was a restricted Osage Indian. The claim was presented to the superintendent of the Osage Indian Agency and upon his request was approved by the Secretary of the Interior and the money was ready for payment.

¶4 On September 17, 1937, the mother of the child in question filed her petition in the county court of Osage county in the original bastardy case, setting up the fact of the death of Antwine Pryor, the father, and the appointment of an administratrix for his estate and asked the court to render judgment against the estate of the deceased for an additional sum for the support of the child.

¶5 The administratrix filed her answer denying the authority of the county court to render judgment for the additional sum. Testimony was heard and judgment was rendered by the court modifying the former judgment by allowing the mother of said minor the additional sum of $2,400 against the estate of deceased.

¶6 This appeal has been taken from that judgment. It is contended by the administratrix that upon the death of Antwine Pryor all further proceedings abated and that the court was thereafter without jurisdiction to modify or enlarge the judgment previously made.

¶7 Section 1726, O.S.1931 (chapter 14, article 3), 10 Okl.St.Ann. § 79, under which bastardy proceedings are authorized, provides: "The court may at any time, enlarge, diminish or vacate any order or judgment in proceedings under this Article on such notice to the defendant and county attorney as the court may prescribe."

¶8 The question presented there is: did the county court, after the death of Antwine Pryor, have authority to enlarge, diminish or vacate the $1,200 judgment rendered against him during his lifetime? This presents a question of survival of actions and involves the application of the Oklahoma Statutes thereon in bastardy proceedings.

¶9 Section 568, O.S.1931, 12 Okl.St.Ann. § 1051, provides: "In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, shall also survive; and the action may be brought, notwithstanding the death of the person entitled or liable to the same."

¶10 Section 569, O.S.1931, 12 Okl.St.Ann. § 1052, provides: "No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of the defendant."

¶11 In State ex rel. v. City of Shawnee et al., 167 Okl. 582, 31 P.2d 552, 92 A.L.R. 948, this court held: "Section 823, C.O.S.1921 (St.1931, § 569), 12 Okl.St.Ann. § 1052, is remedial and procedural, and does not prevent the abatement of a right of action or cause of action unless such an action survives by virtue of section 822, C.O.S.1921 (St.1931, § 568), 12 Okl.St.Ann. § 1051, relating to the survival of actions."

¶12 And said: "It seems apparent that it never was the Legislature's intention to provide that an action should continue after the death of a party when the right of action or cause of action would not survive at common law, except as otherwise provided for in section 822, supra."

¶13 Section 822 and 823 cited above are sections 568 and 569, O.S.1931, 12 Okl.St.Ann. §§ 1051, 1052, quoted herein in full.

¶14 The court further quoted the common law rule as laid down in 3 Bl.Com. 302 as follows: "* * * The death of either party is at once an abatement of the suit. And in actions merely personal, arising es delicto (from wrong done), for wrongs actually done or committed by the defendant, as trespass, battery, and slander, the rule is that actio personalis moritur cum persona (a personal action dies with the person); and it shall never be revived either by or against the executors or other representatives. For neither the executors of the plaintiff have received, nor those of the defendant have committed, in their own personal capacity, any manner of wrong or injury."

¶15 This is not one of the causes named in section 568, O.S.1931, 12 Okl.St.Ann. § 1051 in addition to causes which survived at common law. We must conclude that there is no provision in our statute which prevents a cause of action in a bastardy proceeding from abating upon the death of the putative father.

¶16 A further question arises here as to whether or not the action in the instant case is a pending action which authorizes the court to enlarge, diminish or vacate the judgment previously entered. If the action were a pending action at the time of the death of the putative father and survived, then it would seem reasonable to conclude that the cause of action would also survive. We find that a very few states have statutes providing for survival of actions in bastardy proceedings.

¶17 The...