Opinion
No. 13109
Opinion Filed December 23, 1924.
Appeal and Error — Decision After Death of Party — Recall of Mandate — Disposition of Cause.
Where the defendant in error died after the submission of the cause in the Supreme Court, and the cause is decided after his death, and the mandate is sent down to the trial court, the Supreme Court will order the mandate recalled, set aside its decision, and render the decision and opinion as of the day af the submission of the cause, and direct the clerk to so enter it.
(Syllabus by Stephenson, C.)Commissioners' Opinion, Division No. 4.
Supplemental Opinion.For former opinion see Kaw Boiler Works v. John Frymyer et al., 100 Okla. 81, 227 Pac. 453.
John Frymyer, the defendant in error, died after the submission of this cause, but before the opinion was approved by this court. The death of the defendant in error has been suggested to this court for the first time and proved to have occurred after submission of the cause, and before the approval of the opinion by the court. While the fact of said death between the submission and decision does not impair the validity of the judgment, in order to preserve all rights thereunder, said judgment is hereby set aside, said opinion and mandate recalled, and the clerk of this court is directed to refile said opinion and enter the judgment of this court in said cause nunc pro tunc, as of the date when said cause was submitted. Goldsborough et al. v. Hewitt, 26 Okla. 859, 110 P. 906.
By the Court: It is so ordered.
Note. — See 1 C. J. p. 169.