109 P. 69 | Okla. | 1910
The defendant in error J. C. Whelchel moves this court to dismiss the proceedings in error herein as to him, for the reason that he has not been served with summons therein within the time required by law, and that as to him said proceedings have not been commenced within the time required by law. The record shows the judgment appealed from was entered on the 28th day of November, 1908; that the case-made was prepared, properly served on the attorneys for all the adverse parties, settled by the trial judge, and filed in this court on the 29th day of November, 1909, the last day of the year within which the same could be filed. One *151 of the defendants in error entered his appearance and waived issuance of summons in error as to him. On the 29th day of November, 1909, the plaintiff in error filed his pr aelig;cipe for summons in error for J. C. Whelchel, and summons was thereupon issued and duly returned, showing no service. On the 4th day of February, 1910, an alias summons was issued for said Whelchel, which has not been returned. The record also discloses that the rights of said Whelchel will be affected by a reversal or modification of the judgment appealed from.
It has been many times held by this court that one whose rights may be affected by a reversal or modification of the judgment appealed from is a necessary party in the appellate court; and it has been held that, where a defendant in error who is a necessary party is not served, no judgment of reversal can be rendered against him until he has had an opportunity to be heard in the Supreme Court. Section 5552, Comp. Laws 1909, provides that:
"An action shall be deemed commenced, within the meaning of this article, as to each defendant, at the date of the summons which is served on him, or on a codefendant, who is a joint contractor, or otherwise united in interest with him. Where service by publication is proper, the action shall be deemed commenced at the date of the first publication. An attempt to commence an action shall be deemed equivalent to the commencement thereof, within the meaning of this article, when the party faithfully, properly, and diligently endeavors to procure a service; but such attempt must be followed by the first publication of service of the summons within sixty days."
The cause of action in this case was based upon a promissory note, signed by the defendants. Whelchel's defense was that the alleged promissory note set forth in plaintiff's petition was obtained from him by plaintiff by fraud, circumvention, and misrepresentation. The other defendants set up defenses of like import, and all prevailed in the court below. Under these circumstances, it is clear they were and are united in interest, and this proceeding must be deemed to have been commenced against all the defendants within the year by the acceptance of service by one of the codefendants. *152
Counsel for defendant in error Whelchel, in support of their motion to dismiss, contend that, if the petition in error is filed on the last day of the year allowed, then the summons in error must be served upon all the defendants in error within 6 days after, and that the case of Wedd v. Gates,
"In the case of Barber Asphalt Co. et al. v. Botsford, etal.,
The part of Judge Johnston's opinion quoted no doubt is applicable to the case then under discussion; but it must be presumed that Mr. Justice Burwell was also familiar with the following, also taken from the same case, which is applicable to the case at bar:
"Here there was no actual service upon Botsford until long after the period of limitation had elapsed. If he has not been brought within the jurisdiction of the court by the action previously taken, the motion to dismiss must be allowed. Plaintiff in error meets this objection by the contention that, under section 20 of the Code, a service upon Smith, who was a codefendant and united in interest with Botsford, was a service upon the latter. We think this contention must prevail. The Code does not provide in terms when a proceeding in error shall be deemed commenced, but it does provide that, when a proceeding in error is filed, a summons shall be issued and served or publication made as in the commencement of an action. Provision is also made that a service upon the attorney of record in the original case shall be sufficient, Civ. Code, § 544. Now as defendants in error may be brought into court as in the commencement of an action, we may look to the provisions of the Code with reference to the beginning of an action; and section 20 provides that 'an action shall be deemed "commenced," within the meaning of this article, as to each defendant, at the date of the summons which is served on him or on a codefendant, who is a joint director or otherwise united in interest with him.' The application of this provision to proceedings in error has not been determined by this court. Possibly the question was in some of the earlier Kansas cases cited herein; but it was not brought to the attention of the court, and has never before received consideration. It was determined in Thompson v. Manufacturing Co. supra
[
As the sections of the Kansas statute under discussion in the foregoing case are identical with the statutes of this state involved in the case at bar, and practically the same as the statutes of Ohio on this subject, we are constrained to follow the decisions of the Supreme Courts of these states.
The motion to dismiss must be overruled.
All the Justices concur. *155