House v. Gragg , 170 Okla. 550 ( 1934 )

This cause was submitted September 12, 1934, and an opinion rendered and filed October 30, 1934. On November 13, 1934, plaintiffs in error filed a motion to set aside the opinion of October 30th, on account of the death of the plaintiff in error, E. Ethel House, administratrix, on October 12, 1934. The death of said plaintiff in error was not suggested until the filing of the motion by the attorney for the plaintiff in error. The defendant in error has filed a motion to recall the mandate and to date the opinion as the date of the submission of the cause. In the case of Spencer, Adm'x, v. Hamilton, 156 Okla. 194, 13 P.2d 81, under a similar set of circumstances, this court said:

"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 decision and opinion filed herein February 23, 1932, is hereby recalled and set aside, and the clerk of this court is directed to refile said opinion and enter the judgment of this court in this cause nunc pro tunc, as of February 2, 1932, the date when said cause was submitted. Bell v. Bell, 181 U.S. 175, 45 L. Ed. 804, 21 S. Ct. 551; Goldsborough v. Hewitt, 26 Okla. 859, 110 P. 906; Kaw Boiler Works v. Frymyer, 105 Okla. 177, 231 P. 1059."

It is therefore ordered that the clerk of the court refile said opinion, and enter a judgment of this court in the cause nunc pro tunc September 12, 1934.