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. |
¶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: 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.
¶1 The motion to dismiss, omitting the caption and mere formal parts, reads as follows:
¶2 Exhibit A reads as follows:
¶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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