241 P. 151 | Okla. | 1925
The plaintiff, the Boardman Company, a corporation, commenced its action in the district court of Kiowa county, seeking a writ of mandamus against the defendant P. W. Carlton, as county clerk of Kiowa county, to compel the said defendant to attest a warrant ordered issued by the board of county commissioners of Kiowa county. A hearing was had upon the petition, and on about the 5th day of December, 1923, the petition was sustained and the writ ordered issued against said defendant. The defendant took steps to appeal the case from the judgment of the trial court. Before the appeal was filed in this court, defendant P. W. Carlton died, and Mary Carlton became his successor as county clerk of the said county. On March 31, 1924, and before the appeal was filed in the Supreme Court, there was filed in the case a purported journal entry attempting to substitute Mary Carlton for her deceased predecessor as a party to the action. Later the record was filed in the Supreme Court with petition in error. The defendant in error, the Boardman Company, has filed a motion in the Supreme Court to dismiss the appeal for the reason that the original defendant has died, and the attempted substitution of Mary Carlton was abortive and of no effect.
Crigler, County Clerk, v. Nichols,
"An action against the county clerk to compel him to issue a warrant on the county treasurer is against him personally to compel the performance of an official act, and on the termination of his official authority his successor cannot be substituted."
This case was followed in State ex rel. DeAtley v. Alexander,
For the reasons stated, the motion to dismiss should be sustained, and the appeal dismissed.
By the Court: It is so ordered.