Loeser v. Loeser

This action was filed by the plaintiff in error, Frank Loeser, in the district court of Alfalfa county, to cancel a deed, made by Carl Loeser, one of the defendants in error, to Otto Loeser, the other defendant in error, to certain real estate described in the petition. The grounds upon which the deed is asked to be canceled are that the plaintiff in error on February 28, 1912, obtained a judgment for $2,000 against Carl Loeser, and that the transfer of said real estate was fraudulently made in order to defeat the collection of this judgment. Defendant Carl Loeser died January 17, 1913. His death was duly suggested, and this action revived in this court against his personal representatives.

This court will take judicial knowledge of the fact that the above-named judgment for $2,000 has recently been reversed by this court, and that the judgment was obtained in an action for malicious prosecution. See Dunnington v.Loeser, 48 Okla. 636, 149 P. 1161, 150 P. 874.

Since that judgment has been reversed, this cause presents only a moot question. Under the statutes of Oklahoma, an action for malicious prosecution abates on the death of the defendant. Rev. Laws 1910, section 5280. Consequently, the cause of action for malicious prosecution is dead, and cannot be tried again. And since by the judgment and decree of this court the plaintiff in error has lost his judgment, which was the basis of this action, and under the statute he cannot have another recovery on that cause of action, there is nothing to be gained by the appeal in this suit. It now presents only a moot question, and no purpose can be served by further proceedings. And this court holds that hypothetical questions disconnected from the granting of actual relief, further than the awarding of costs on appeal, will not be decided by this court.McCullough et al. v. Gilcrease, 40 Okla. 741, 141 P. 5; Stateex rel. Lozier v. Bogle et al., 40 Okla. 740, 140 P. 1153.

We therefore recommend that the appeal be dismissed.

By the Court: It is so ordered.