NICHOLS v. BEARDSLEY

NICHOLS v. BEARDSLEY
1930 OK 178
287 P. 72
143 Okla. 27
Case Number: 20278
Decided: 04/15/1930
Supreme Court of Oklahoma

NICHOLS
v.
BEARDSLEY et al.

Syllabus

¶0 1. Appeal and Error--Want of Necessary Party on Appeal--Failure to Revive Cause After Death of Prevailing Party.
Where a prevailing party dies while the cause is still pending in the trial court, and thereafter the losing party seeks to prosecute proceedings in error in the Supreme Court without the cause having been revived, ample time having elapsed between the time of the death of the party and the expiration of the time in which to appeal, this court is without jurisdiction to review the proceedings in the trial court for the want of necessary party defendant in error.
2. Appeal and Error--Moot Question not Decided.
The Supreme Court will not decide abstract or hypothetical cases, disconnected from the granting of actual relief, or from the determination of which no practical relief can follow.

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

Action by Sally Nichols, nee Grayson, against D. Beardsley and another. From order of the trial court denying plaintiff's motion to reinstate the cause of action previously dismissed, plaintiff 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 denying plaintiff's motion to reinstate cause of action theretofore dismissed. The order appealed from was made October 15, 1928, and the appeal filed in this court April 15, 1929. A motion is presented to dismiss the appeal upon the grounds this court is without jurisdiction to hear and determine the same for the reason D. Beardsley, one of the defendants in error, died on April 1, 1928, before the order and judgment appealed from was rendered in the trial court and the cause was not revived in the name of the heirs or legal representatives of the defendant in error in the trial court.

"Where a prevailing party dies while the cause is still pending in the trial court, and thereafter the losing party seeks to prosecute proceedings in error to the Supreme Court without the cause having been revived, ample time having elapsed between the time of the death of the party and the expiration of the time in which to appeal, this court is without jurisdiction to review the proceedings in the trial court for the want of necessary party defendant in error." Vaughan v. Seabolt, 136 Okla. 112, 277 P. 643; City of Anadarko v. McKee, 89 Okla. 166, 214 P. 700; Barrick v. Smith, 77 Okla. 163, 187 P. 199; Young v. La Rue, 49 Okla. 252, 152 P. 340; Nichols v. Beardsley, 134 Okla. 139, 272 P. 447.

¶2 The plaintiff in error has responded to the motion to dismiss the appeal and asserts he had no knowledge of the death of Beardsley until the day the order and judgment appealed from was rendered, and under the proviso in section 837, C. O. S. 1921, the court may permit a revivor within a reasonable time after the knowledge of the death of the party.

¶3 Exactly six months had elapsed between the date of the order appealed from, the date on which the plaintiff admits she obtained the information of the death of Beardsley, and the time the appeal was filed in this court. Ample time was afforded plaintiff to have caused a revivor of the action in the trial court, and it is not shown that any attempt has been made to cause a revivor of this action.

¶4 Section 838, C. O. S. 1921, provides that:

"When it appears to the court, by affidavit, that either party to an action has been dead for a period so long that the action cannot be revived in the names of his representatives or successors without the consent of both parties, or, when a party sues or is sued as a personal representative, that his powers have ceased, the court shall order the action to be dismissed at the costs of the plaintiff."