Perry v. Lebel

BAYLESS, V. O. J. II. T. V. Perry et al. appeal to this court from an order of the district court of Atoka county, Okla-, reviving a judgment against them upon application of Mrs. Harry Lebel Holmes, admin-istratrix de bonis non. December ‘2, 1914, Georgia Lebel, admin-istratrix of the estate of Albert Lebel, deceased, obtained a judgment against Perry et al. for $5,000, because of the wrongful death of the deceased. This judgment was kept alive by successive executions, issued within successive five-year periods, the last one being issued March 1, 1929. This last five years would end February 2S, 1934 (section 442, O. S. 1931). June 16, 1931, Georgia Lebel, thte administratrix, died. December 7, 1934, her successor, Mrs. I-Tarry Lebel Holmes, administratrix de bonis non. applied to said district court to revive said judgment, alleging the judgment had become dormant as provided in section 442, supra, all as provided by section 590, O. S. 193L Said court thereafter entered an order of revivor, and this appeal resulted. The sole objection to the 'application was that Mrs. Georgia Lebel, administratrix, died on June 16, 1931, and since more, (han one year had elapsed, the revivor could not be made without consent. Section 384, 0. S. 1931. That is the sole issue of law presented and argued here. The arguments may be summarized thus: The appellants say that Mrs. Georgia Lebel was the judgment creditor and party in interest to the action, and revivor must be had within one year after her death; and the appeiles says Mrs. Georgia Lebel, administratrix, was simply a representative, and the estate was the beneficiary, and that the death of (he representative had no effect upon the life of the judgment, and nothing needed to be done except to substitute her successor representativo. The successor' then would be required to keep the judgment alive thereafter, as though nothing had happened. We do not believe this precise question h‘as been before this court heretofore. A somewhat analogous issue was present in the case of Missouri, O. & G. Ry. Co. v. Gentry, 31 Okla. 579, 122 P. 537, and the rule announced therein lends support to our conclusion in this case. There we held that where a guardian instituted a cause of action in favor of his ward, 'and died during the pendency of the action, it was not necessary to revive the action, but only to substitute the successor to the guardian. Of course, the statute construed in that case was the Arkansas statute in effect in a portion of Oklahom'a prior to statehood, but our own statute, section 147, O. S. 1931, is identical. The appellants cite and rely strongly upon the case of Manley v. Mayer, 68 Kan. 377, 75 P. 550. Their argument is that our statute was adopted from Kansas, and th'at we, likewise,' adopted the construction placed upon the statute by the courts of Kansas before it was adopted by us. United States v. Choctaw, O. & G. Ry. Co., 3 Okla. 404, 41 P. 729. and many other Cases cited in Oklahoma Digest (West Pub. Co.) vol. 13, p. 196, under the heading of Statutes, key number 226. This is the general rule of law, hut we are unwilling to follow the construction *129 placed upon the applicable statute in Manley v. Mayer, supra. First: The Supreme Court of Kansas in the body, of th'at opinion candidly states that the conclusion reached is contrary to the current authority elsewhere, and was only adopted because of the prevailing view in Kansas relating to dormancy, which was contrary to the view maintained in other jurisdictions. Second: In the later Kansas case of Postlethwaite v. Edson, 106 Kan. 354, 187 P. 688, a contrary view was reached by the Supreme Court of Kansas on the same issue without any reference to the ehrlier case of Manley v. Mayer, supra. In this later case it was expressly held that the revival of a judgment against the representative of a deceased judgment debtor was a revival against the estate, and the death of the representative thereafter did not result in dormancy. In the case of Hutchinson v. Kruger, 34 Okla. 23, 124 P. 591, 41 L. R. A. (N. S.) 315, Ann. Cas. 1914C, 98, in discussing the rule of the adoption of the statute being ipso facto, and adoption of the construction placed thereon, we said: “If the construction placed on an adopted statute is not in harmony with the Constitution or the public policy of the 'adopting state, or is contrary to the decided weight of authority in other states construing substantially the same statute, the courts of the adopting state are not required to blindly follow such construction.” See, also, Western Terra Cotta Co. et al. v. Board of Education of the City of Shawnee. 39 Okla. 716, 136 P. 595. Therefore, in view of the admission that the earlier Kansas case is contrary to the weight of authority, and of the fact that there now exists an apparently unexplained conflict in the opinions of the Supreme Court of Kansas on this issue, we decline to follow the construction placed thereon in the dase of Manley v. Mayer, supra, and prefer to follow the rule expressed, on a similar situation in the opinion in M., O. & G. Ry. Co. v. Gentry. Our attention is called to the case of Moss v. Ramsey, 49 Okla. 499, 153 P. 843, wherein the language is susceptible of a conclusion contrary to that reached herein. We have considered this case and the facts involved therein, and it is clear that the court should have required, or intended to require, the substitution of the successor to the administrator, for this would have served all the requisites as disclosed by the authorities cited, which authorities refer to cases involving successors only. The purpose of our Code of Civil Procedure is to confine litigation to the parties actually affected thereby — the real parties in interest. Section 142, O. S. 1931. But the very language of this section is a recognition that this is not always an invariable practice. Minors, incompetents, beneficiaries, citizens affected similarly by public m'atters, deceased persons, defunct corporations, partnerships dissolved by the death of a partner — all of these interests usually must be represented by someone. The law is never blind to the true positions of the representative and the represented. It is elementary that a representative party generally has no title or interest in the action, or its subject m'atter, other than the official title or interest conferred upon him by the law for his use and benefit of the one he represents. Bunker v. Taylor, 13 S. D. 433, 83 N. W. 555. He must account for his acts. He may be removed. He may resign. 1-Ie may suffer disabilities rendering him incapable of further responsible conduct. In all of the instances, any property held by him in his representative capacity passes to his successor in representation. There may be a hiatus in representation, but no hiatus is created thereby in so far as the one represented — the real party in interest — is concerned. The rule applies to litigation as well. Does the death of .the representative after he has obtained a judgment in favor of the one he represents produce a different result? We think not. Eor the party in interest, the party for whose benefit the judgment was taken, the estate yet exists. A successor representative may be substituted, and no revivor because of this alone is necessary. Missouri, O. & G. Ry. Co. v. Gentry, supra. See. also, Daisy Roller Mill v. Ward, 6 N. D. 317, 70 N. W. 271; Edney v. Baum, 2 Neb. Unof. 173, 96 N. W. 167; Sadler v. Jappson, 82 N. J. L. 20, 82 Atl. 316; Sprengel v. Schroeder, 203 Ill. App. 213; Thorburn v. Gates, 181 N. Y. S. 520. In the ca«e of Postlethwaite v. Edson, supra, the Supreme Court of Kansas said: “The revivor of the judgment against Mary Edson, administratrix, established the judgment against the estate of Willis Bd-son. Another revivor against the estate was not necessary. Whoever was appointed in her place succeeded to her rights 'and *130 obligations to the estate and to its creditors. Further proceedings for or against the estate should have been conducted in the name of the new personal representative.” The sole difference between that case and the one we are considering in so far as precise issue is: The representative represented the judgment debtor in Kans'as, whereas the representative represented the judgment creditor here. Their legal positions and rights are identical. We believe, if the distinction is kept in mind as to whether a party is the real party in interest as contemplated by section 142, O. S. 1931, or whether the party is acting in a representative c'apacity only, that the issue becomes clear as to whether revivor or substitution of parties is necessary. OSBORN, C. J., and RILEY, CORN, HURST,' and DAVISON, ,TJ., concur. WELCH, PHELPS, and GIBSON, JJ., dissent.