De Bolt v. Farmers' Exchange Bank, 148 P. 830

148 P. 830 | Okla. | 1915

1. Upon the first proposition we find between the petition in error and the transcript of the proceedings in the lower court the following:

"Filed July 13, 1912, R.E. Bagby, Clerk District Court of Noble Co., Okla., by Lillian Johnson, Deputy."

We have not been cited any authority, nor do we see why this is not a substantial compliance with Comp. Laws 1909, which provides:

"Sec. 6072. Filing Case-Made — Costs. — That in all actions hereafter instituted by petition in error in the Supreme Court the plaintiff in error shall attach to and file with the petition in error the original case-made, filed in the court below, or a certified transcript of the record of said court. * * *

"Sec. 6074. Appeal on Case-Made. — The case so made, or a copy thereof, shall, within three days after the judgment or order is entered, be served upon the opposite party or his attorney, who may within three days thereafter suggest amendments thereto in writing, and present the same to the party making the case, or his attorney. The case and amendments shall be submitted to the judge who shall settle and sign the same, and cause it to be attested by the clerk, and the seal of the court to be thereto attached. It shall then be filed with the papers in the case. A certified copy thereof shall be filed with the petition in error. The exceptions stated in a case-made shall have the same effect as if they had been reduced to writing, allowed and signed by the judge at the time they were taken."

Counsel for movant complains that, because the paper on which the filing appears is not marked as a page, it is not sufficient. For convenience it should have had some such designation, but failure to so arrange is not grounds for dismissal. In Tucker et al. v. Thraves, 145 P. 784, nor yet reported in Oklahoma Reports, it is held:

"That under the law the depositing with the clerk for the purpose of filing constitutes a valid filing."

2. The second proposition is not well taken. Page 92, case-made, contains the following:

"And thereafter, and upon the 6th day of February, A.D. 1912, the same being one of the juridical days of the February, 1912, term of said court, these consolidated causes came duly on for trial, and the proceedings therein are fully set out and shown in the reporter's transcript thereof, which is herein set out, made a part of this case-made, and is, in words and figures, as follows, to wit."

Also page 94, after noting the cause duly coming on for trial, appearance of the parties, concludes, "The following proceedings are had and done, to wit," followed by the usual procedure, such as the evidence, objections by attorneys, ruling by the court, judgment, motion for new trial, etc. The word "proceedings," as above used, has received a construction by the Supreme Court of Kansas (John Deere Plow Co. v. Jones etal. [Kan.] 75 P. 1039) as follows:

"But defendants in error contend that the case-made does not show that it contains all the pleadings and evidence. Its recital is that it contains all the `proceedings.' This term as thus used, includes the evidence. Lindsay v. Com'rs of KearneyCounty, 56 Kan. 630, 44 P. 603."

In Uhe v. Chicago, M. St. P. Ry. Co., 3 S.D. 563, 54 N.W. 601, we find:

"The word `proceedings' has acquired a peculiar and appropriate meaning in law. To ascertain what that meaning is we must look to the standard law dictionaries and reported cases. Judge Gardiner, in the case of Morewood v. Hollister,6 N.Y. 319, said that `the term "proceedings," in its more general sense in law, means all the steps or measures adopted in the prosecuting or defense of an action.' This definition was adopted by the judge delivering the opinion in the case of Gordon v. State,4 Kan. 501. It may mean more than the record history of a case. It is undoubtedly sometimes used in the restrictive sense. In its ordinary acceptation, the word, when unqualified except by the subject to which it applies, includes the whole of the subject. Thus the proceedings of a suit embrace all matters that occur in its progress judicially, proceedings upon a trial, all that occurs in that part of the litigation. Morewood v. Hollister,supra. The definition given by Bouvier (volume 2, p. 340) is the steps or measures taken in the course of an action, including all that are taken. The proceedings in a suit embrace all matters that occur in its progress judicially."

In Loeb v. Loeb, 24 Okla. 389, 103 P. 570, Judge Dunn said:

"The Supreme Court of the state of Kansas, in the case ofAtchison, T. S.F. Ry. Co. v. Brassfield, 51 Kan. 167, 32 P. 814, says: `The charge of the court is a "proceeding" in a cause, and, where there is a statement in a case-made that it contains all of the proceedings in the cause, it will be held that all of the instructions are embodied therein.'"

In this connection it seems to us that, as the Supreme Court of this state has repeatedly stated the necessary requisites in order to bring up the evidence for review, attorneys ought to prepare their case-made within the letter, and not get so close to the feather edge.

3. The third proposition is: Are all the parties in this court the same as in the lower court? No; nor are they necessary parties. The parties not before the court are the Pioneer Construction Company, J.C. Hale, Houliston Coal Material Company, and Rankin Bros. Of those just named all except Hale defaulted, and we think it is well settled that in a case of this nature they are not necessary parties. Hale was given personal judgment against defendant Pioneer Construction Company, and was denied lien on the property of the bank and lodges, but was granted a new trial. His status under the facts is in no way injurious to any of the parties before, or not before, the court.

In Seibert v. First Nat. Bank of Okeene, 25 Okla. 778, 779,108 P. 628, Judge Kane says:

"The * * * rules for determining this question" seem to be well settled by this court as follows: "(1) All persons who are parties to the proceedings in the trial court, and whose interest will be adversely affected by a reversal of the judgment must be brought into the appellate proceeding. (2) If the interests of those who are brought into the appellate proceedings as parties will be injuriously affected by a reversal or modification of the judgment complained of, without a reopening of the case as to other parties as to whose interest the judgment has become final by the failure to appeal, the appeal will be dismissed." Outcalt v. Collier,8 Okla. 473, 58 P. 642; Gillette v. Murphy, 7 Okla. 91,54 P. 413; Wedd v. Gates et al., 15 Okla. 602, 82 P. 808; Strangev. Crismon, 22 Okla. 841, 98 P. 937; Board ofCommissioners v. Lemley, 23 Okla. 306, 101 P. 109;Continental Gin Co. v. Huff, 25 Okla. 798, 108 P. 369.

Applying the rule under the facts in this case, Hale is not a necessary party in this court. In Jones v. Balsey Rogers etal., 25 Okla. 344, 106 P. 830, 138 Am. St. Rep. 921, a case very similar to the one at bar, the syllabus is as follows:

"(1) Appeal and Error — Necessary Parties — Service of Case-Made. An action brought by J. against B. R., contractors, for material furnished in the construction of buildings on lots of B., C. M. for judgment in a certain sum, and also to enforce a mechanic's lien for that amount upon said building and lots, B. R. having defaulted after service, and judgment being rendered against them for the amount sued for, and in favor of B., C. M. as to the lien, on appeal to this court by J. without making B. R. parties thereto, held, that B. R. could not be affected or their rights prejudiced thereby, and that they were unnecessary parties."

At page 350 of 25 Okla., at page 833 of 106 Pac. [138 Am. St. Rep. 921], Judge Williams says:

"If this cause be reversed in this court and remanded for a new trial, and, on retrial, judgment should be rendered against the defendants in error enforcing a lien on their property for the amount of the judgment, how could that affect Balsey Rogers? They have no interest so far as this record discloses in the lots or buildings on which the lien is sought to be enforced. * * * Can Balsey Rogers be prejudiced by a lien on the property of the other defendants in any way? We think not. See, also, Megin v. Filor et al., 4 Fla. 203."

See, also, Atlantic Trust Co. et al. v. Prescott et al.,5 Kan. App. 172, 48 P. 926; Hallwood Cash Register Co. v.Dailey, 70 Kan. 620, 79 P. 158; Hass v. Tough,67 Kan. 253-255, 72 P. 856.

It follows, then, that if those not before the court are not necessary parties, it was unnecessary to serve them with the case-made and with notice of the signing and settling of the same, and likewise unnecessary to get their waiver. The motion to dismiss is therefore denied.

By the Court: It is so ordered.