Rowray v. McCarthy

• Decision Date: 12 March 1935
• Docket Number: 1900
• Citation: 42 P.2d 54,48 Wyo. 108
• Parties: ROWRAY v. McCARTHY
• Court: Wyoming Supreme Court

42 P.2d 54

48 Wyo. 108

ROWRAY v. McCARTHY

No. 1900

Supreme Court of Wyoming

March 12, 1935

ERROR to the District Court, Natrona County; C. O. BROWN, Judge.

Action by Dickie L. Shipp against Eugene McCarthy. To review a judgment in favor of defendant, Oline Rowray, as executrix of the last will and testament of Dickie L. Shipp, and as sole legatee and devisee under the last will and testament of Dickie L. Shipp, deceased, brings error. On defendant's motion to dismiss.

Motion to dismiss sustained.

S.E Phelps, of Casper, for plaintiff in error.

It is true that the appeal was perfected more than one year after the rendition of the judgment, but it is believed that Section 89-4816 is not applicable by reason of the death of Mrs. Shipp, for other sections of our code at once become operative, coincident with her death, providing special procedure to be followed, which extended the time for appeal. The statute referred to specifies certain disabilities which affect the question. Legal representatives and heirs are successors in interest of decedent. 89-4001, R. S.; Cook v. Elmore, 25 Wyo. 393. The incident of death creates a lapse of time necessary for the designation of those who are to represent the estate. Sections 89-207, 209, 210, 214, 217 1701, 1901 and 1906, W. R. S. 1931. Where death occurs pending litigation must conform to statutes providing for succession and interest. Smith v. Harrington, 3 Wyo 503. One result of death is to deprive the attorney representing the decedent of further authority. 6 C. J. 675; Sheldon v. Dalton, 57 Cal. 19; Moyle v. Landers, (Cal.) 20 P. 241; Pedlar v. Stroud, (Cal.) 48 P. 371; McCornick v. Shaughnessy, (Ida.) 114 P. 22; Oregon Auto-Dispatch v. Caldwell, (Ore.) 135 P. 880; Cesna v. Beech, 15 O. 300. Another result is suspension of jurisdiction of the court until substitution is accomplished in accordance with the law. Sec. 89-1230, R. S. 1931; 3 C. J. 1020. A proceeding in error cannot be substituted in the name of a party who has died; a revivor and substitution must be had. Sec. 89-1236, R. S. 1931; Kennard v. Kennard, 35 O. S. 660; Swing v. Hill, (Ind.) 88 N.E. 721; Warner v. Dunlap, 187 N.Y.S. 374; State v. Co. Cir. Ct., (Wis.) 162 N.W. 436. Sections 89-402 and 1227 designate actions which do not abate by death. Sections 89-1232-1234 relate to revival; 89-1236 to substitution and 89-1238-1239 as to limitation for substitution; 89-1240 to limitation of time as to revivor; 89-1241 to dismissal of an action which cannot be revived and 89-1242 provides a means for dismissal of an action by defendant where the successor in interest does not proceed promptly. In this case, the practical operation of the law prevented proceeding by reason of the death of Mrs. Shipp while the right of appeal existed, since the statutes referred to suspended the operation of the one year provision of Section 89-4816 with death. Winslow v. Benton, 40 S.E. 840. The following authorities hold that the revivor and substitution period are not computed within the time specified by a statute similar to Section 89-4816. 24 C. J. 774; 15 C. J. 825; 3 C. J. 1020; Murphy v. Redmond, 46 Mo. 317; Barton v. City of New Haven, (Conn.) 52 A. 403; McCann v. Burns, (Ore.) 136 P. 659; Warner v. Dunlap, 187 N.Y.S. 374; State v. Waushara Ct., (Wis.) 162 N.W. 436; Boston v. Tyndale, (Mass.) 105 N.E. 982; Rasmussen v. Sener Company, (Utah) 121 P. 741; Benson v. Bennett, (N. C.) 17 S.E. 432; Sanford v. Sanford, 62 N.Y. 553; Palmer v. O'Rourke, (Wis.) 110 N.W. 389.

For the defendant in error, there was a brief by Hagens and Wehrli, of Casper, and oral argument by Mr. Wehrli.

As the only questions before the court are those arising on the record proper, the proceeding was not commenced in time, under the ruling of this court in the case of W. Sheep Company v. Pine Dome Oil Company, 32 Wyo. 61, unless the death of plaintiff stayed the running of the statute of limitations, 89-4816, R. S. 1931, or extended the limitation period. This seems to be conceded by plaintiff in error. Death does not suspend the running of a statute limiting time for appeal. Ropes v. Goldman, 7 Am. & Eng. Ann. Cases, 393; Ex Parte Dante, 228 U.S. 429; Williams v. Long, (Cal.) 62 P. 264; Evans v. St. Louis Ry. Co., 88 S.W. 994; Sambs v. Stein, (Wisc.) 11 N.W. 53. Plaintiff in error was not without a remedy. Section 89-4816, R. S. 1931, provides for an extension of time in such cases. An action does not abate by death, until there is a suggestion of death to the court. 1 C. J. 172; Hayden v. Huff, (Nebr.) 87 N.W. 184. Plaintiff in error was lacking in diligence in this case in not applying for an extension of time. The motion to dismiss should be sustained.

S.E. Phelps in reply to motion to dismiss.

The case of W. Sheep Company v. Pine Dome Oil Company referred to by defendant in error did not involve any of the disabilities provided in Section 89-4816, R. S. 1931. The case of Ropes v. Goldman (Fla.), Ex Parte Dante (U. S.) and Williams v. Long (Calif.) involved no statutory provision staying or extending the time for appeal where death has removed one of the litigants. None of the other cases cited were decided under laws similar to those of Wyoming, except the Wisconsin case. The effect of our statutory requirements, Sections 89-1227-43, relating to substitution, is recognized as constituting a suspension or postponement of the time in which to appeal. 3 C. J. 1064; Barton v. City of New Haven, (Conn.) 52 A. 403; McCann v. Burns, (Ore.) 136 P. 659. It is not an arbitrary assumption, as suggested by appellee, that one year is allowed as a matter of right in which to make the substitution. Smith v. Harrington, 3 Wyo. 503. When substitution is made, it would seem that the period of suspension is at an end, and the period within which to appeal under Section 89-4816, or start other proceeding, again starts running. McCann v. Burns, (Ore.) 136 P. 659. If the original plaintiff had lived, the appeal would have been perfected within the year; but by her death, the writer lost a client and was deprived of authority to apply for an extension of time. Ritchey v. Seeley, (Nebr.) 94 N.W. 972; St. Louis & S. F. R. Co. v. Nelson, (Okla.) 119 P. 625; R. Co. v. Woodson, (Mo.) 85 S.W. 105; Matter of Robbins, (N. Y.) 112 N.Y.S. 1032. By death, the court was deprived of authority to make such an order extending the time for appeal. De Leonis v. Walsh, (Calif.) 73 P. 813. Death caused the provisions of Sections 89-1227-43 to become operative. The law supplies this right of substitution as a matter of right if exercised within one year of the date of death. Sec. 89-1240; 1 C. J. 215; 1 C. J. 240; Plumer v. Lumber Company, (Wisc.) 43 N.W. 250; Hayden v. Huff, (Nebr.) 87 N.W. 184; Carter v. Jennings, 24 O. S. 182; Boyles v. Richardson, (Okla.) 114 P. 710; Carolan v. O'Donnell, 126 N.Y.S. 551; Johnson v. New York, (Conn.) 14 A. 773. In the case of Field v. Leiter, 16 Wyo. 1, the court said: "We think the propriety of our entry of an order finally disposing of this cause as of a date prior to its submission might well be doubted."

RINER, Justice. KIMBALL, Ch. J., and BLUME, J., concur.

OPINION

RINER, Justice.

This cause is before the court upon the motion of the defendant in error to dismiss. The facts to be considered in disposing of the motion are briefly these:

The district court of Natrona County, on April 19, 1933, entered a judgment in favor of the defendant in an action wherein D. L. Shipp was plaintiff and Eugene McCarthy was defendant. The plaintiff died testate on March 21, 1934. On June 25, 1934, Oline Rowray was appointed executrix under plaintiff's will and letters testamentary were issued to her on that day. Subsequently, and on August 2, 1934, the executrix suggested to the district court the death of the plaintiff, whereupon, the same day, the court made an order reviving the action in the name of the executrix aforesaid, which order was served upon the defendant September 17, 1934. The present proceeding in error was not commenced until October 10, 1934, when the petition in error was filed here. There is no bill of exceptions and the questions sought to be presented for review arise solely upon the record proper.

The question chiefly argued by the parties and the only question arising upon the motion which we deem it necessary to consider is whether this court is without jurisdiction for the reason that the petition in error in the case was not filed within one year after the rendition of the judgment as prescribed by § 89-4816 W. R. S. 1931. That statute reads:

"No proceeding to reverse, vacate, or modify a judgment or final order shall be commenced unless within one year after the rendition of the judgment, or the making of the final order complained of; or, in case the person entitled to such proceeding is an infant, a person of unsound mind, or in prison, within one year, as aforesaid, exclusive of the time of such disability; provided, however, that the court rendering such judgment or making such final order upon application of the party desiring to institute such proceeding and upon making to said court a sufficient showing that said party will be unavoidably prevented from instituting such proceeding within said time, shall, by an order duly entered of record, give to said party a reasonable extension of time, not exceeding eighteen months, within which to institute such proceeding."

Under the authority of "W" Sheep Company v. Pine Dome Oil Company, 32 Wyo. 61, 228 P. 799, the motion must be sustained unless, as asserted by plaintiff in error, the death of Mrs. Shipp put in effect statutory provisions which stopped the running of the statute above quoted.

In Daley v. Anderson, 7 Wyo. 1, 48 P. 839, 841, this court quoting from Elliott's App....