Zahn v. Obert

• Decision Date: 27 June 1916
• Docket Number: Case Number: 7637
• Citation: 60 Okla. 118,1916 OK 754,159 P. 298
• Court: Oklahoma Supreme Court
• Parties: ZAHN v. OBERT et al.

1916 OK 754

159 P. 298

60 Okla. 118

ZAHN v. OBERT et al.

Case Number: 7637

Supreme Court of Oklahoma

Decided: June 27, 1916

Syllabus

¶0 1. Abatement and Revival--Death of Party--Survival of Cause of Action.

This suit was for the recovery of money on an appeal bond, and the cause of action, under the statutes, survived and passed to the personal representatives of the deceased plaintiff.

2. Same--Proceedings for Revival--Order--Consent and Notice.

A careful examination of sections 5288, 5293, 5294, Rev. Laws 1910, noticing the phraseology and punctuation clearly shows that no consent is necessary if the order to revive the action is made before the expiration of one year from the time the order might have been first made. If made with consent either before or after the expiration of one year from the time the order might have been first made, no notice, as required in section 5288, supra, is necessary. If made before the expiration of one year without consent, then the notice and service thereof required by section 5288, supra, become jurisdictional and mandatory. It cannot be made at all after the expiration of one year without consent.

3. Same--Appeal and Error--Order of Revivor--Authority of Appellate Court.

The order of revivor in this cause, made by the trial court on September 7, 1915, within the year, but without consent, and without notice, is utterly null and absolutely void and the court below acted entirely without jurisdiction; and, there being no legal and proper revivor in the court below, where such revivor would of necessity have to be made for the reason that this action was pending in such court at the time of his death, no plaintiff in error is legally brought before this court in the proceedings in error, and more than six months, the time fixed by law in which to commence proceedings in error in this court, having elapsed, there is no judgment of the court below, and no revived cause of action brought up for this court to hear, consider, and determine. This action cannot be revived here, for the obvious reason that the plaintiff in error, plaintiff below, did not die while the action was pending in this court on appeal

4. Appeal and Error-- Presenting Questions in Trial Court--Necessity--Jurisdiction.

Under section 4742, Rev. Laws 1910, objection to the jurisdiction of the court, and that the petition does not state facts sufficient to constitute a cause of action, is never waived. The want of jurisdiction in the trial court may be raised for the first time in the appellate court.

5. Same.

A motion to dismiss proceedings in error, which raises a jurisdictional question, will be considered and determined, when the case is reached for final disposition, although the notice thereof required by rule 16 of the court has never been given. And jurisdictional questions, both as to the trial court and the appellate court, will be raised by the appellate court on its own initiative, or sua sponte.

6. Appeal and Error--Jurisdiction-- Consent of Parties.

Parties cannot confer jurisdiction upon any court by agreement, and certainly can neither confer jurisdiction upon the Supreme Court by agreement nor by voluntarily coming into the case as an original action in the Supreme Court.

7. Abatement and Revival--Proceedings for Revival--Parties.

Aside from a failure to give notice, the attempted revivor is void. The subject-matter of the action is personal property, and passes to the representatives of the deceased and not to his heirs. Section 5290, Rev. Laws 1910, provides: "Upon the death of the plaintiff in an action, it may be revived in the name of his representatives, to whom his right has passed. Where his right has passed to his personal representatives, the revivor shall be in their names; where it has passed to his heirs or devisees, who could support the action if brought anew, the revivor may be in their names." In this case, upon the death of the plaintiff, the right of action passed, not to his heirs, but to the administrator of his estate. The subject- matter of the action was a part of the personal estate, and subject to the payment of the debts of the deceased, if judgment be secured and satisfied. The attempted revival in the names of the heirs was therefore a nullity, and is of no consequence in the determination of the question in this case.

8. Parties--Amendment--Statutory Provisions.

Section 4768, Rev. Laws 1910, which provides that the title of a cause shall not be changed at any of its stages, means the title or caption of the answer or demurrer, or other paper filed in the cause after the petition, shall be like that of the petition, naming plaintiff first; whereas, before the Code, it was usual to name the party putting in the pleading first. This section does not conflict with section 4790, Rev. Laws 1910, which authorizes the court, in furtherance of justice, to amend any pleading, etc., by adding to or striking out the name of any party, etc.

Error from District Court, Caddo County; Cham Jones, Judge.

Action by Abe Zahn against M. Obert and another. Judgment for defendants, and plaintiff brings error. Motion of defendant B. W. Hammert to dismiss

Blake, Boys & Shear and C. H. Carswell, for plaintiff in error.

A. J. Morris, for defendants in error.

DAVIS, C.

¶1 The motion to dismiss, omitting the caption and mere formal parts, reads as follows:

"Comes the defendant in error, B. W. Hammert, and moves the court to dismiss the petition in error herein for the following reasons, to wit: The judgment in the lower court was rendered March 8, 1915. The plaintiff below, who is the only plaintiff in error in this court, died July 14, 1915, as shown by a certified copy of the application for revivor, which is attached hereto, made part hereof, and marked 'Exhibit A' and the petition in error was not filed here until the 8th day of September, 1915. That said cause was never revived in the trial court, and no attempt was made in that court to revive it except on the 7th day of September, 1915, the day prior to the filing of the petition in error, certain parties made application to the district court to have said cause revived, which application is hereinabove referred to as 'Exhibit A' and on the same day, without any notice to the defendant in error, B. W. Hammert and without his consent, a purported order was made by the judge of said district court, purporting to revive said action, a copy of which is attached hereto, made a part hereof, and marked 'Exhibit B' all of which is shown by the affidavit of A. J. Morris, which is attached hereto, made part hereof, and marked 'Exhibit C.' That more than six months has expired since the rendition of said judgment, and no parties have become plaintiffs in error in this court except the deceased, and this court therefore has no jurisdiction to review the judgment of the trial court for want of necessary parties plaintiff in error."

¶2 Exhibit A reads as follows:

"Comes now George G. Zahn, Norman Zahn, Abraham B. Zahn, Henry Zahn, and Beulah May London nee Zahn, and allege and represent to the court that heretofore, and by the consideration of the district court of Caddo county, state of Oklahoma, and on the 8th day of March, 1915, in a case therein pending, entitled Abe Zahn, Plaintiff, v. M. Obert and B. W. Hammert, Defendants, there was rendered a judgment against the said Abe Zahn, and in favor of B. W. Hammert, adjudging that in said action the said plaintiff, Abe Zahn, should not recover against the said B. W. Hammert, as prayed for in the petition of said plaintiff, and adjudging that the said B. W. Hammert recover his costs against the said Abe Zahn on his cause of action in said petition set out. The said George G. Zahn, Norman Zahn, Abraham B. Zahn, Henry Zahn, and Beulah May London, nee Zahn, allege that heretofore, and on the 14th day of July, 1915, the said Abe Zahn died intestate, and that no administrator has been appointed for his estate at the date of the filing hereof, and no administration had of said estate; that the said George G. Zahn, Norman Zahn, Abraham B. Zahn, Henry Zahn, and Beulah May London, nee Zahn, are the children of the said Abe Zahn, born in lawful wedlock, and the heirs of the said Abe Zahn, and are entitled to proceed with said action to determination in favor of or against them. Wherefore the said George G. Zahn, Norman Zahn, Abraham B. Zahn, Henry Zahn, and Beulah May London, nee Zahn, heirs of the said Abe Zahn, as aforesaid, pray that an order be made herein, reviving the said cause in the name of the said George G. Zahn, Norman Zahn, Abraham B. Zahn, Henry Zahn, Beulah May Zahn, successors in interest of the said Abe Zahn, deceased, and that the same proceed in favor of, or against them."

¶3 This supplemental petition and application for order of revivor, Exhibit A, was filed in the district court of Caddo county, Okla., on September 7, 1915, and on the same day the court granted the following order, Exhibit B:

"Now, on this 7th day of September, 1915, it appearing that heretofore, by the consideration of the district court of Caddo county. state of Oklahoma, and on the 8th day of March, 1915, in a cause therein pending, entitled Abe Zahn, Plaintiff, v. M. Obert and B. W. Hammert, Defendants, there was rendered a judgment against the said Abe Zahn, and in favor of B. W. Hammert, adjudging that in said action the said Abe Zahn should not recover against the said B. W. Hammert, as prayed for in the petition of said plaintiff, and adjudging that the said B. W. Hammert recover his costs against the said Abe Zahn on the cause of action in said petition set out; and it being made further to appear that heretofore, and about the 14th day of July, 1915, the said plaintiff, Abe Zahn, died intestate, and left as his heirs the said George G. Zahn, Norman Zahn, Abraham B. Zahn, Henry Zahn, and Beulah May London, nee Zahn, children of the said Abe Zahn, born in lawful wedlock, and that by operation of law these

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