Grace v. Home State Bank of Tecumseh , 88 Okla. 24 ( 1922 )

This cause comes on to be heard upon the motion to dismiss the appeal filed by the defendant in error.

It seems that the regular trial court being disqualified, the cause was tried before J.H. Woods, Esquire, as special judge by agreement of the parties, the judgment appealed from being rendered on the 25th day of February, 1922, and 90 days given from February 21, 1922, in which to serve case-made.

On the 29th day of May, 1922, three days after the 90 days had expired, further order of extention was made by the regular judge, Hal Johnson, previously disqualified, and on the 15th day of August, 1922, case-made was settled and signed by the special judge, J.H. Woods.

On the 30th day of June, 1922, McClain Taylor, one of the principal defendants, died and the cause was not revived in the trial court, either against the personal represenative of said McClain Taylor, or his heirs. The regular judge, Hal Johnson, had no jurisdiction to make an order of extension in which to serve case-made, for the reason that when he certified his disqualification, he was disqualified for all purposes; and for further reason, the time had expired in which the order could be made.

Where one of the parties died and the case was not revived in the trial court between the time of final judgment and the expiration of the statutory period for filing appeal in this court, the appeal will be dismissed. Skillern v. Jameson,29 Okla. 84, 116 P. 193; Nye v. Jones, 35 Okla. 96,128 P. 112.

The motion is therefore sustained, and the appeal dismissed.

McNEILL, MILLER, KENNAMER, and NICHOLSON, JJ., concur.