(Syllabus.)
Appeal and Error — Recall of Mandate — Correction of Inadvertent Errors in Opinion.
Where through mistake or inadvertence an opinion is rendered by this court in a case naming a deceased party plaintiff in error after the action is revived in another and mandate has gone down, the mandate, on motion of defendant in error, will be recalled, the opinion withdrawn, and an opinion rendered nunc pro tunc correcting such error.
PER CURIAM.
An opinion was rendered in this case on March 27, 1923 ( 90 Okla. 187), affirming the judgment of the lower court against D.D. Henderson, plaintiff below and plaintiff in error here. Rehearing was denied July 10, 1923, and mandate went down corresponding to the decision. It appears, however, that subsequent to the filing of this appeal and in the year of 1921, the said plaintiff in error, D.D. Henderson, departed this life; and that thereafter, to wit, on January 31, 1922, this cause was in this court duly received in the name of Lacy B. Henderson as administratrix of the estate of D.D. Henderson, deceased, against Hugh Pebworth. Briefs filed in the case failed to notice the substitution of party plaintiff in error, and the matter not otherwise being called to the attention of the court, the order of revivor was overlooked in rendering the decision.
Defendant in error has filed a motion asking that this mistake be corrected. Where error has been committed in rendering an opinion as a result of mistake or inadvertence and mandate has gone down, this court will, upon proper application, recall the mandate, and withdraw and correct the opinion. St. Paul Fire Marine Ins. Co. v. Peck, 40 Okla. 396, 139 P. 117; McKee v. Thornton, 81 Okla. 261, 198 P. 93.
The motion is sustained and the mandate in this case hereby recalled, the opinion rendered March 27, 1923, withdrawn and corrected to show the substitution of Lacy B. Henderson, administratrix, as plaintiff in error in the place of D.D. Henderson, deceased, and said opinion as corrected rendered nunc pro tunc as of the date the original opinion was filed.
The clerk of this court is therefore directed to refile said opinion as corrected herein, and enter same nunc pro tunc as of March 27, 1923, and issue mandate accordingly.