The opinion
On Rehearing.
RAINEY, J.
On rehearing it is insisted by counsel for defendant that the opinion in this case, prepared by Commissioner Davis and adopted by the court, erroneously held that—
“In order to have reviewed the action of the court in overruling the special motion of defendant filed for the purpose of having vacated the order of revivor made on the 11th day of August, 1916, it was necessary to have incorporated this alleged error in the motion for a new trial and a failure to present this question in a motion for a new trial precludes this court from a consideration of this question on appeal.”
While we have frequently held that an error occurring on the trial of a cause will not be reviewed by this court unless presented to the trial
court in
a
motion
for a new trial, the action of the trial court in the instant case in refusing to set aside the revivor was not an error occurring on the trial of the cause; for, as stated in the opinion, the cause was tried on the 23d day of November, 1916, and the motion to'vacate was presented and overruled on the 17th day of November, 1916. It was therefore unnecessary to incorporate this alleged ground for reversal in the motion for new trial.
But we think the assignment of error is without merit, and that the trial court did nofj err in overruling the motion to vacate. The record discloses that Mrs. Pitchford, who was the original plaintiff in the action, died on March 24. 1915, and that W. T. For-rester was appointed administrator of her estate on August 21, 1915. A motion to re vive the action was filed on March 4, 1916 and on February 28, 1936. Judge Brown, sitting in chambers at Stigler. Okla.. signed an order purporting to revive said action in the name of the administrator. On April 3,1916. the defendant filed its motion to vacate the order of revivor on account of a number of alleged irregularities in the proceedings to revive, and this motion was sustained on April 13, 1916. On April 15th following plaintiff filed a motion for a new trial on defendant’s motion to set aside the revivor, -which was overruled on the same day. Plaintiff excepted to this action, and was given time within which to make and serve case-made on appeal, but no appeal was taken. Thereafter plaintiff had served on counsel for defendant, who resided in Oklahoma City, a notice that the motion pending in the cause to revive the action in the name of the administrator would be presented to Judge Brown, in chambers at Stigler, Okla., on Monday, July 31, 1916, '“or so soon thereafter as said judge may hear said matter.” Thereafter, and on August 11, 1916, Judge Brown, sitting in chambers at Stigler, Okla., entered an order reviving the action as prayed.
Counsel contended that when the trial court overruled plaintiff,’s motion for a new trial on the order setting aside the first order of revivor, the motion to revive was finally disposed of, and, as no further motion to revive was filed, the court was without jurisdiction to enter the second order of revivor. We are not favorably impressed with this contention ; for it is our view that the action of the trial court in setting aside the order of re-vivor for certain iiTegularities in procuring the same was not a final determination of tb]e plaintiff!» right to revive, and left the motion to revive still pending. Moreover, plaintiff’s motion for a new trial did no,t perform any function in the proceedings. A motion for a new trial was unnecessary to present to the Supreme Court on appeal the action of the court in setting aside the order of revivor, because it did not grow out of a contested question of fact arising upon the pleadings. Powell et al. v. Nichols et al., 26 Okla. 734 , 110 Pac. 762 , 29 L. R. A. (N. S.) 886; Boardman Co. v. Board of Com’rs of Atoka County, 70 Okla. 245 , 174 Pac. 272 .
So, when the plaintiff, pursuant to said motion to rbvive, gave the necessary notice that the same would be presented to the trial court, said court still had jurisdiction to hear the matter and to enter the second order of revivor. By failing to perfect the appeal on the order setting aside the first re-vivor plaintiff, in effect, merely acquiesced in said order, but did not abandon his motion to revive.
Although the last order of revivor was made after notice to the defendant was served on counsel by the deputy sheriff of Okla-
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liorna comity, Okla., in ample time to file objections thereto, the objections made in both of defendant’s motions to set aside the respective orders of revivor did not go to the merits of plaintiff's right to revive, nor does the defendant contend that' the action is one that could not be revived, and it never at any time filed any pleadings resisting plaintiff’s grounds of revivor. We find no substantial error in the granting of the second order of revivor, and the technical objections made in defendant’s brief, in our opinion, are not supported by authority or reason.
The other questions urged on rehearing were fully considered by the commissioner, and we concur with his views thereon as expressed in the opinion.
This is the second time this case has been to this court, the plaintiff recovering in both actions, and from an examination of the entire record we believe that substantial justice has been done, and that the judgment of the trial court should: be affirmed, as modified in the original opinion.
All the Justices concur, except TURNER, and BRETT, JJ., absent.