McKEE v. THORNTON

McKEE v. THORNTON
1921 OK 166
198 P. 303
81 Okla. 261
Case Number: 9650
Decided: 05/10/1921
Supreme Court of Oklahoma

McKEE
v.
THORNTON.

Syllabus

¶0 Appeal and Error--Death of Defendant in Error After Submission--Mandate Re-called--Opinion. Where defendant in error dies after the submission of a cause in the Supreme Court, and the cause is decided after his death, though the mandate may have been sent down to the trial court, the Supreme Court will order the mandate recalled, withdraw its opinion, and render an opinion and judgment nunc pro tunc as of the date of submission, and direct the clerk to issue mandate accordingly.

West, Sherman, Davidson & Moore, for plaintiff in error.
Merwine & Newhouse, for defendant in error.

HARRISON, C. J.

¶1 It appears that this cause was submitted on oral argument and briefs February 10, 1920; that on August 31, 1920, an opinion was rendered by this court reversing the judgment of the trial court and rendering judgment in said cause (79 Okla. 138, 192 P. 212). It further appears that between the date of submission and the date of rendering opinion G. W. Thornton, defendant in error, died, but that such fact was not called to the attention of the court until after the opinion had been rendered. Subsequent thereto motion was filed suggesting death of defendant in error, and asking that mandate be recalled and judgment in said cause rendered nunc pro tunc as of the date of submission. In Goldsborough et al. v. Hewitt, 26 Okla. 859, 110 P. 906, under a condition exactly similar to the case at bar, this court held:

"Where defendant in error dies after the submission of a 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 date of the submission of the cause, and direct the clerk to so enter it."

¶2 Upon the authority of the above case, anti the authorities therein followed, and upon Boyes et al. v. Masters et al., 28 Okla. 409, 114 P. 710, the motion of plaintiff in error is sustained. The mandate in this case is hereby recalled, and the opinion rendered August 31,1920, withdrawn, and the judgment rendered in said opinion is now rendered nunc pro tunc as of the date of submission of said cause, to wit, February 10, 1920. The clerk of this court is therefore directed to refile said opinion and enter same nunc pro tunc as of said 10th day of February, 1920, and to issue mandate accordingly.