FARMERS STATE BANK OF CLARITA v. WILLIAMSON.

FARMERS STATE BANK OF CLARITA v. WILLIAMSON.
1931 OK 337
1 P.2d 377
151 Okla. 105
Case Number: 19265
Decided: 06/16/1931
Supreme Court of Oklahoma

FARMERS STATE BANK OF CLARITA
v.
WILLIAMSON.

Syllabus

¶0 Appeal and Error--Dismissal of Appeal--Failure to Revive Cause After Death of Defendant in Error.
Where defendant in error had died pending the appeal in this court, and more than one year has elapsed since the death of the defendant in error, and no order made reviving the cause and no steps have been taken for a revivor and no reasonable excuse being given for the delay, the appeal will be dismissed.

Appeal from District Court, Coal County; P. L. Gassaway, Judge.

Action by N. R. Williamson against the Farmers State Bank of Clarita, Okla. Judgment for plaintiff, and defendant appeals. Dismissed.

Trice & Davison, for plaintiff in error.
W. R. Wallace, for defendant in error.

PER CURIAM.

¶1 This is an appeal from the judgment of the district court of Coal county rendered in an action wherein the defendant in error was plaintiff. The appeal was filed in this court April 5, 1928, and the cause is now before the court on motion to dismiss the appeal for want of necessary party, and alleges that the defendant in error, N. R. Williamson, died in Johnston county, Okla., on the 2nd day of February, 1929, and that more than one year has elapsed since the death of the defendant in error, and that the action has not been revived in the name of his personal representative. Where the defendant in error has died pending the appeal in this court, and more than one year has elapsed since the death of the defendant in error, and no action has been taken to revive the cause and no order made reviving the same, the appeal will be dismissed. Hester v. Gilbert, 43 Okla. 400, 143 P. 189; Chicago, R. I. & P. Ry. Co. v. Peacock, 86 Okla. 259, 207 P. 962; Bowdish v. Williams, 89 Okla. 99, 214 P. 118; Mathews v. Ward, 96 Okla. 68, 220 P. 335.

¶2 A response has been filed herein by plaintiff in error, in which it asserts it had no knowledge of the death of the defendant in error until the filing of the motion to dismiss the appeal; that no administrator has been appointed, and asks that it be allowed to continue the action in the name of the representative or successors in interest of the deceased under the provisions of section 223, C. O. S. 1921.

¶3 In the case of Edwards v. Asher, 95 Okla. 39, 217 P. 869, this court announced the following rule:

"That portion of section 4695, Revised Laws 1910 (223, C. O. S. 1921), providing: 'In case of death or other disability of the party, the court may allow the action to continue by or against his representative or successors in interest, upon such terms and in such time as may be just under the circumstances presented,' is not in conflict with section 5294, Revised Laws 1910 (section 837, C. O. S. 1921), and is to be construed so as to give effect to both statutes."

And in the body of the opinion, the court said:

"While the court may allow the action to continue upon such terms and in such manner as may be just under the circumstances presented, it is also imperative that section 5294, Revised Laws 1910, be complied with, and a revivor had within the time therein provided in order to permit the action to continue."

¶4 In this action it was necessary to revive in the name of the administrator of the estate of the deceased, and in the case of Glazier v. Heneybuss, 19 Okla. 316, 91 P. 872, this court announced the following rule:

"A person cannot prevent the operation of the statute of limitation by delay in taking action incumbent upon him. * * *