
    KAW BOILER WORKS v. FRYMYER et al.
    No. 13109
    Opinion Filed Dec. 23, 1924.
    Appeal and Error-Decision After Death of Party — Recall of Mandate — Disposition of Cause.
    Where the defendant in error died after the submission of the cause in the Supreme Court, ¿nd the cause is decided after his death, and .the mandate is sent down bo the trial court, the Supreme Court will order the mandate recalled, set aside its decision, and render the decision and opinion as of ■the day af the submission of the cause, and direct the clerk to so enter it.
    (Syllabus by Stephenson, C.)
    Commissioners’ Opinion, Division No. 4.
   Supplemental Opinion.

For former opinion see Kaw Boiler Works v. John Frymyer et al., 100 Okla. 81, 227 Pac. 453.

Opinion by

STEPHENSON, C.

John Fry-myer, the defendant in. error, died after the submission of this cause, but before the opinion was approved by this court. The death, of .the .defendant in error .has been suggested to this court. for the first time and proved to have occurred after submission of the cause, and before the approval of the opinion by the court. While the fact of said death between the- submission and decision does not impair the validity of the judgment, in order to preserve all rights thereunder, said judgment is hereby set aside, said opinion and mandate recalled, and the clerk of this court is directed to refile said opinion and enter the judgment of this court in said cause nunc pro tunc, as of the date when said cause was submitted. Goldsborough et al. v. Hewitt, 26 Okla. 859, 110 Pac. 906.

Note. — See 1 C. J. p. 169.

By the Court: It is so- ordered.  