Counsel for defendant in error states in his petition for rehearing "that to reverse the cause and order a new trial when no new trial can be had will result in miscarriage of justice and deprive the plaintiff of all the rights which the law afforded him in such case." We have re-examined the record and adhere to the views expressed in our former opinion, with the exception as to the reversal of the cause for a new trial. The defendant below, John H. Bellis, against whom the judgment was obtained, died while the action was pending on appeal in this court, wherein he was plaintiff in error. The action was revived in this court. We reverse the judgment of the trial court. Section 823, C. O. S. 1921 [O. S. 1931, sec. 569], provides as follows:
"No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution, for a nuisance or against a justice of the peace for misconduct in office, which shall abate by the death of the defendant."
By reason of the death of said decedent, the aforesaid section of the statute is applicable, and said plaintiff cannot have a recovery against said decedent, John H. Bellis. The court is directed to enter judgment that the action abate. See Loeser v. Loeser. 50 Okla. 249, 150 P. 1045; also Denslow v. Hutchinson, 152 Ill. App. 502.
CLARK, V. C. J., and HEFNER, ANDREWS, SWINDALL, and KORNEGAY, JJ., concur. LESTER, C. J., and RILEY and CULLISON, JJ., absent.
Note. — See under (1) annotation in 64 L. R. A. 481; 3 L. R. A. (N. S.) 929; L. R. A. 1918D, 1137, 1138; 24 A. L. R. 261; 18 R. C. L. 42; R. C. L. Perm. Supp. pp. 4408, 4409; R. C. L. Pocket Part, title "Malicious Prosecution," § 55.