Eisiminger v. Jones

PER CURIAM. This is an appeal from the judgm'ent of the district court of Blaine county rendered on the 26th day of January, 1928, in favor of the defendants in error and against the plaintiff in error. Motion for new trial was overruled on the 29th day of February,, 1928. Thereafter, on the 12th day of March, 1928, the defendant in error Erastus Leander Jones died, and on the 10th day of April, Herb A. Baker was appointed administrator of his estate. No revivor of said causfe in the name of the heirs of said Erastus Leander Jones or of his administrator had been made in the trial .court prior to the filing of the appeal in this court on the 27th day of August, 1928. 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 in the name of the heirs or legal representatives of the deceased, an appeal from such judgment to this court will be dismissed for want of necessary party to the appeal. Nichols v. Beardsley et al., 134 Okla. 139, 272 Pac. 447; Grace v. Home State Bank of Tecumseh, 88 Okla. 24, 210 Pac. 1022; May v. Fitzpatrick, 35 Okla. 45, 127 Pac. 702; Nye v. Jones, 35 Okla. 96, 128 Pac. 112; Skillern v. Jameson, 29 Okla. 84, 116 Pac. 193. Under this state of the record, the rule announced in the above authorities cited is applied, and upon motion the appeal in this cause is dismissed. Note.—See “Appeal and Error,” 4 C. J. §2393, p. 583, n. 55.