Opinion
No. 2080
Opinion Filed November 16, 1912.
NEW TRIAL — Grounds — Death of Judge. Where, prior to the passage of the act of March 9, 1910 (Sess. Laws 1910, p. 59), a trial judge died within the time allowed to sign and settle a case-made, his successor was not authorized to perform such duty; and the aggrieved party, being by reason of such unavoidable casualty or misfortune prevented from prosecuting his appeal to this court, will be given a new trial.
(Syllabus by the Court.)
Error from Pawnee County Court; H. T. Conley, Judge.
Action between N. R. Duffield and M. F. Ingraham. From the judgment, Duffield brings error. Reversed and remanded.
E. M. Clark, for plaintiff in error.
Eagleton, Biddison Merritt, for defendant in error.
This case presents error from the county court of Pawnee county. Subsequent to the denial of the motion for new trial, November 3, 1909, and during the time for service of the case-made, Judge H. T. Conley, the trial judge, died. Thereafter the case-made was settled by County Judge N.E. McNeill, and filed in this court. After the rendition of the case of J. W. Ripey Son v. Art Wall Paper Mill Co., 27 Okla. 600, 112 P. 1119, decided on the 16th day of November, 1910, and invoking the rule therein laid down, counsel for plaintiff in error presented evidence showing the death of the trial judge on February 26, 1910. Under the authority of the above case, therefore, the cause will be remanded to the trial court, with instructions to set aside the judgment heretofore rendered and grant plaintiff in error a new trial.
HAYES and KANE, JJ., concur; TURNER, C. J., and WILLIAMS, J., absent, and not participating.