SUBDIVISION IV. REVIVOR OF ACTIONS.

5144. What actions abate by death of party. Except as otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except an action for libel, slander, malicious prosecution, assault, or assault and battery, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of either party. [75 v. 632, 18; 51 v. 57, 2399; S. & C. 1058.]

See 4975. The prosecution of the reputed father of a bastard child does not abate by the death of the child, 19 O. S. 583. An action for malicious prosecution, 1 H. 480, and for slander, 21 O. S. 536, did not, under 51 v. 57, abate by plaintiff's death, nor by defendant's death after verdict and before judgment, 6 O. S. 228, 246; but before the code the death of appellant abated the action, 3 0.274. Which," in the last clause of this section, embraces a l of the preceding causes of action, and not, as was claimed (21 O. S. 539), simply an action against a justice of the peace, Id. 542. A cause of action for wrongfully causing death abates by the death of the wrongdoer, 37 O. S. 372; but death, pending the action, does not abate it, 1 Clev. R. 122. Nuisance, 21 Bull 395.

25145. Action for dower does not abate. If the plaintiff in an action for dower die before final judgment therein, the action may be revived in the name of her personal representative, for the purpose mentioned in 2 5715. [60 v. 10, ? 1; S. & S. 311.]

2 Bull 76.

5146. When action may proceed without revivor. When there are several plaintiffs or defendants, and one of them dies, or his powers as a personal representative cease, if the right of action survive to or against the remaining parties, the action may proceed; but the death of the party, or the cessation of his powers, shall be first stated on the record. [51 v. 57, ? 400; S. & C. 1058.]

? 5147. When action abates as to some parties, it may proceed as to others. When one of several plaintiffs or defendants dies, or his powers as a personal representative cease, if the cause of action does not survive, the court, if of opinion that the merits of the controversy can be properly determined, and the principles applicable to the case fully settled, may proceed to try the same as between the remaining parties; but the judgment shall not prejudice any person who was not a

party at the time of the trial. [51 v. 57, ? 401; S. & C. 1058.]

? 5148. Revivor in favor of or against personal representative, etc. When one of the parties to an action dies, or his powers as a personal representative cease before judgment, if the right of action survives in favor of or against his representatives or successor, the action may be revived, and proceed in the name of such representatives or successor. [38 v. 146, ?? 240, 241; 51 v. 57, 2402; S. & C. 611, 612, 1058.]

Revivor in name of successor of assignee, 41 O. S. 591.

? 5149. Revivor by motion, or supplemental pleading. A revivor may be effected by the allowance by the court, or a judge thereof in vacation, of a motion of the representative or successor in interest to become a party to the action, or by supplemental pleading alleging the death of the party, and naming his representative or successor in interest upon whom service may be made as in the commencement of an action; but the limitations contained in subsequent sections of this chapter do not apply to this section. [51 v. 57, 239; S. & C. 958.]

See 5012; 24 O. S. 182; 29 O. S. 87. The court may allow the representative of a deceased defendant in error to be made party to the proceeding, though more than a year may have intervened from the death of such defendant to the time of making application for such allowance, 30 O. S. 600; see 37 O. S. 143; 38 O. S. 96.

5150. Revivor by conditional order. A revivor may also be effected by a conditional order of the court, if made in term, or by a judge thereof, if in vacation, that the action be revived in the name of the representative or successor of the party who died, or whose powers ceased, and proceed in favor of or against him. [51 v. 57, ? 403; S. & C. 1058.]

37 O. S. 143; 29 O. S. 86; 10 Rec. 58.

? 5151. By whom conditional order made. The order may be made on the motion of the adverse party, or of the representative or successor of the party who died, or whose powers ceased, suggesting his death, or the cessation of his powers, which, with the name and capacities of his representative or successor, shall be stated in the order. [51 v. 57, ? 404; S. & C. 1059.]

25152. How conditional order served. If the order be made by consent of the parties, the action shall forthwith stand revived; if not made by consent, the order shall be served upon the party adverse to the party on whose motion it was made, in the same manner, and returned within the same time, as a summons; and if sufficient cause be not shown against the revivor, the action shall stand revived. [51 v. 57, 405; S. & C. 1059.]

1 W. L. M. 403; 2 Id. 577.

5153. When service may be made by publication. When the plaintiff makes an affidavit that the representatives of the defendant, or any of them in whose name the action is ordered to be revived, are non-residents of the state, or have left the state to avoid the service of the order, or so conceal themselves that the order can not be served upon them, or that the names and residence of the heirs or devisees of the person against whom the action is ordered to be revived, or some of them, are unknown to the affiant, a notice may be published for six consecutive weeks, as provided by 25048, notifying them to appear on a day therein named, not less than ten days after the publication of the notice is complete, and show cause why the action should not be revived against them; and if sufficient cause be not shown to the contrary, the action shall stand revived. [51 v. 57, 406; S. & C. 1059.]

No revivor against foreign administrator, 2 C. S. C. R. 55.

25154. When plaintiff dies in whose name action revived. Upon the death of the plaintiff the action may be revived in the names of his representatives to whom his right has passed; if his right has passed to his personal representative, the revivor shall be in his name; and if it has passed to his heirs or devisees who could support the action if brought anew, the revivor may be in their names. [51 v. 57, 407; S. & C. 1059.]

By analogy this provision is applicable to proceedings in error, 29 O. S. 633, 634.

25155. When defendant dies, in whose name action revived. Upon the death of a defendant, in an action wherein the right, or any part thereof, survives against his personal representative, the revivor shall be against him; and it may also be against the heirs or devisees of

the defendant, or both, when the right of action, or any part thereof, survives against them. [51 v. 57, 2408; S. & C. 1059.]

5156. When defendant in real action dies. Upon the death of a defendant in an action for the recovery of real property only, or which concerns only his rights or claims to such property, the action may be revived against his heirs or devisees, or both, and an order therefor may be forthwith made, in the manner directed in the preceding sections of this subdivision. [51 v. 57, ? 409; S. & C. 1059.]

25157. Limitation when defendant dies. An order to revive an action against the representative or successor of a defendant shall not be made without the consent of such representative or successor, unless within one year from the time it could have been first made. [51 v. 57, 2 410; S. & C. 1059.]

2 5158. Limitation when plaintiff dies. An order to revive an action in the name of the representative or successor of a plaintiff may be made forthwith, but shall not be made, of right, without the consent of the defendant, after the expiration of one year from the time the order might have been first made; but when the defendant is dead, or his powers have ceased, the order of revivor on both sides may be made in the period limited in the last section. [51 v. 57, 411; S. & C. 1059.]

The mode of revivor provided for by these sections of the code is not exclusive, but the court has discretion to follow the old method, 24 O. S. 182; 29 O. S. 86; see 5149. Notice required, 1 Clev. R. 12.

5159. Action to be dismissed when it can not be revived. When it appears by affidavit that the powers of a party who sues or is sued as a personal representative have ceased, or that either party to an action has been dead, for a period so long that the action can not be revived in the name of his representatives or successor without the consent of both parties, the court shall order the action to be stricken from the docket. [51 v. 57, 2412; S. & C. 1060.]

5160. If plaintiff's representatives fail to revive, case may be stricken from docket. At any term succeeding the death of the plaintiff, while the action remains on the docket, the defendant having given to the plaintiff's representatives, in whose names the action might be

revived ten days' notice of the application, may have an order to strike the action from the docket, and for costs against the estate of the plaintiff, unless the action be forthwith revived. [51 v. 57, 413; S. & C. 1060.]

? 5161. Trial not to be postponed by reason of revivor. When an action stands revived, the trial thereof shall not be postponed by reason of the revivor. [51 v. 57, 2414; S. & C. 1060.]

CHAPTER II.

CONDUCT OF THE TRIAL.

SUBDIVISION I. SUMMONING AND IMPANELING THE JURY.

? 5162. Court of common pleas to determine number of jurors to be selected. The common pleas court of each county shall, at the first term thereof in each year, determine the number of persons necessary to be selected in each county, annually, to serve as grand and petit jurors in the several courts of such county, in which juries may be required, and cause a memorandum thereof to be entered on the journal; such order, if not made at that term, may be made at any other time, and amended from time to time at the discretion of the court, and until it is made, the number of persons to be selected for jurors in each county shall be as theretofore determined; but if there has been no such determination, the number shall be one hundred and thirty until otherwise ordered. [82 v. 31; 70 v. 167, 1.]

See 8 51896. Acts regulating the selection of jurors are not laws of a general nature, within the meaning of the constitution, Art. ii. 26, and hence may be different in the various counties of the state. 34 O. S. 228. Juries must be selected according to the law in force at the time the selection is made, 31 O. S. 265; 42 O. S. 568. Change of law not ex post facto, 12 Bull 258.

25163. Apportionment of jurors. The clerk of the court of common pleas of each county shall, on the first Monday of September, annually, apportion the number of jurors determined as aforesaid among the several townships, and the wards of municipal corporations, in his county, according to the number of male inhabitants therein of twenty-one years of age, and shall make, in writing, a statement of the number of jurors so apportioned to each township and ward, and forthwith deliver