Opinion
No. 11616
Opinion Filed May 19, 1925.
(Syllabus.)
Appeal and Error — Dismissal — Loss of Case-Made by Plaintiff in Error — Failure to Revive Cause After Death.
Where it is shown that the case-made was withdrawn by the plaintiff in error from the office of the clerk af the Supreme Court for a period of over two years and was never returned and said plaintiff in error is unable to restore said case-made, and it is further shown that the plaintiff in error has been dead for more than one year and no revivor has been had, upon proper motion the cause will be dismissed.
Error from District Court, Atoka County.
Action by Cyrus E. Webb and L.R. Webb, partners under firm name of Webb Publishing Company, against J.B. Earle, County Superintendent. From the judgment, defendant brings error Dismissed.
Wyatt Waldrep, for plaintiff in error.
J.G. Ralls and Snyder, Owen Lybrand, for defendants in error.
This is an appeal from the district court of Atoka county. The parties will be referred to as they appeared in the court below.
On the 28th day of March, 1923, the plaintiff filed a motion to dismiss said cause for the reason that the defendant in July, 1923, withdrew the case-made from the office of the clerk of the Supreme Court, and the same was never thereafter returned to said office. It is further shown in the motion by plaintiff to dismiss said action that defendant died in the summer of 1923, and that there has never been a revivor of said cause. No response has been filed by the defendant.
From an examination we find that the case-made was withdrawn in 1923 by the defendant, and the same was never returned to the office of the clerk of the Supreme Court, and it is further shown that plaintiff in error has been dead for more than one year, and no revivor of the action has been had.
The motion of plaintiff to dismiss said cause is therefore sustained.
NICHOLSON, C.J., BRANSON, V.C.J., and HUNT, CLARK, and RILEY, JJ., concur.