NICHOLS v. BEARDSLEY

NICHOLS v. BEARDSLEY
1928 OK 722
272 P. 447
134 Okla. 139
Case Number: 19710
Decided: 12/11/1928
Supreme Court of Oklahoma

NICHOLS
v.
BEARDSLEY et al.

Syllabus

¶0 Appeal and Error--Dismissal for Want of Necessary Party to Appeal--Failure to Revive Action Where Party Died After Judgment.
Where, after judgment, one of the parties to an action dies, and there is ample time in which to revive the action before the expiration of the statutory period for filing an appeal, and the action is not revived in the trial court, an appeal from such judgment to this court will be dismissed for want of a necessary party to the appeal.

Error from District Court, Creek County; Thomas S. Harris, Judge.

Action between Sallie Nichols, nee Grayson, and D. Beardsley et al. From an order of the trial court vacating a judgment, the former appeals. Dismissed.

W. H. Vann, for plaintiff in error.
Streeter Speakman, for defendants in error.

PER CURIAM.

¶1 This is an appeal from an order of the district court of Creek county vacating a judgment formerly rendered in said cause. The order from which this appeal is taken was made in the trial court on the 5th day of March, 1928. The defendant in error F. M. Coonrod has filed in this court his motion to dismiss the appeal for the reason that subsequent to the rendition of the judgment or order appealed from and prior to the filing of this appeal, and on April 1, 1928, D. Beardsley, named as defendant in error, died, and that no revivor of the cause in the name of his heirs or legal representative had been made in the trial court. Plaintiff in error has responded to this motion, and admits the death of the defendant in error D. Beardsley as set forth in the motion to dismiss the appeal.

¶2 The motion to dismiss is well taken. In the case of Grace v. Home State Bank of Tecumseh et al.,

"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."

¶3 The rule thus announced is supported by the cases of Skillern v. Jameson,

"Proceedings in error will be dismissed where, at the expiration of the statutory period for the institution of proceedings in error, it appears from the record that intermediate to final judgment and the filing of proceedings in error in this court a party to the judgment sought to be reversed died, and no order of revivor of the judgment in her favor appears in the record."