CARLTON v. BOARDMAN CO.

CARLTON v. BOARDMAN CO.
1925 OK 883
241 P. 151
115 Okla. 151
Case Number: 15430
Decided: 11/03/1925
Supreme Court of Oklahoma

CARLTON, County Clerk,
v.
BOARDMAN CO.

Syllabus

¶0 Appeal and Error--Dismissal--Death of Defendant in Mandamus Action.
"An action against the county clerk to compel him to issue a warrant on the county treasurer is against him personally to compel the performance of an official act, and on the termination of his official authority his successor cannot be substituted." Crigler, County Clerk, v. Nichols, 51 Okla. 707, 152 P. 343. And a motion to dismiss the appeal, suggesting the death of such official, before final disposition of the appeal in the Supreme Court, should be sustained and the cause dismissed.

Commissioners' Opinion, Division No. 4.

Error from District Court, Kiowa County; Thos. A. Edwards, Judge.

Action by the Boardman Company, a corporation, against P. W. Carlton, as County Clerk of Kiowa County. Judgment for plaintiff, and defendant appeals. Appeal dismissed.

John T. Hays, Co. Atty., for plaintiff in error.
Edward Spiers and Geo. L. Zink, for defendant in error.

SHACKELFORD, C.

¶1 The plaintiff, the Boardman Company, a corporation, commenced its action in the district court of Kiowa county, seeking a writ of mandamus against the defendant P. W. Carlton, as county clerk of Kiowa county, to compel the said defendant to attest a warrant ordered issued by the board of county commissioners of Kiowa county. A hearing was had upon the petition, and on about the 5th day of December, 1923, the petition was sustained and the writ ordered issued against said defendant. The defendant took steps to appeal the case from the judgment of the trial court. Before the appeal was filed in this court, defendant P. W. Carlton died, and Mary Carlton became his successor as county clerk of the said county. On March 31, 1924, and before the appeal was filed in the Supreme Court, there was filed in the case a purported journal entry attempting to substitute Mary Carlton for her deceased predecessor as a party to the action. Later the record was filed in the Supreme Court with petition in error. The defendant in error, the Boardman Company, has filed a motion in the Supreme Court to dismiss the appeal for the reason that the original defendant has died, and the attempted substitution of Mary Carlton was abortive and of no effect.

¶2 Crigler, County Clerk, v. Nichols, 51 Okla. 707, 152 P. 343, is a case wherein an officer of a school district sought a writ of mandamus against the county clerk to require him to issue a warrant. The writ was granted, and the county clerk prosecuted an appeal. A motion was lodged in the Supreme Court to dismiss the appeal for the reason that the county clerk against whom the action was directed had ceased to occupy the official position because his term of office had expired. The motion to dismiss the appeal was sustained, the court holding that:

"An action against the county clerk to compel him to issue a warrant on the county treasurer is against him personally to compel the performance of an official act, and on the termination of his official authority his successor cannot be substituted."

¶3 This case was followed in State ex rel. DeAtley v. Alexander, 77 Okla. 87, 186 P. 1080, and the same declaration of law there made. It seems that under the holdings of this court in the cases cited the attempted order of substitution of Mary Carlton for her deceased predecessor in office, P. W. Carlton, is unauthorized and a mere nullity. It also appears from the cases cited that the action was personal to P. W. Carlton in his official capacity, and since his decease, the question of whether or not the writ of mandamus was properly issued against him by the trial court has become abstract and moot, and a determination of such question here would be entirely unnecessary and of no effect.

¶4 For the reasons stated, the motion to dismiss should be sustained, and the appeal dismissed.