GRACE v. HOME STATE BANK OF TECUMSEH

GRACE v. HOME STATE BANK OF TECUMSEH
1922 OK 349
210 P. 1022
88 Okla. 24
Case Number: 13681
Decided: 12/12/1922
Supreme Court of Oklahoma

GRACE
v.
HOME STATE BANK OF TECUMSEH et al.

Syllabus

¶0 Appeal and Error--Death of Party--Failure to Revive Cause--Dismissal.
Where one of the parties died and the case was not revived in the trial court between the time of final judgment and the expiration of the statutory period for filing appeal in this court, the appeal will be dismissed.

Error from District Court, Pottawatomie County; J. H. Woods, Special Judge.

Action between Laura E. Grace and the Home State Bank of Tecumseh and another. From the judgment, the former brings error. Motion to dismiss sustained.

S. R. Pittman, for plaintiff in error.
T. G. Cutlip, for defendants in error.

KANE, J.

¶1 This cause comes on to be heard upon the motion to dismiss the appeal filed by the defendant in error. It seems that the regular trial court being disqualified, the cause was tried before J. H. Woods, Esquire, as special judge, by agreement of the parties, the judgment appealed from being rendered on the 25th day of February, 1922, and 90 days given from February 21, 1922, in which to serve case-made.

¶2 On the 29th day of May, 1922, three days after the 90 days had expired, further order of extension was made by the regular judge, Hal Johnson, previously disqualified, and on the 15th day of August, 1922, case-made was settled and signed by the special judge, J. H. Woods.

¶3 On the 30th day of June, 1922, McClain Taylor, one of the principal defendants, died and the cause was not revived in the trial court, either against the personal representative of said McClain Taylor, or his heirs. The regular judge, Hal Johnson, had no jurisdiction to make an order of extension in which to serve case-made, for the reason that when he certified his disqualification, he was disqualified for all purposes; and for further reason, the time had expired in which the order could be made.

¶4 Where one of the parties died and the case was not revived in the trial court between the time of final judgment and the expiration of the statutory period for filing appeal in this court, the appeal will be dismissed. Skillern v. Jameson, 29 Okla. 84, 116 P. 193; Nye v. Jones, 35 Okla. 96, 128 P. 112.

¶5 The motion is therefore sustained, and the appeal dismissed.