On January 28, 1910, Otho L. Williams, defendant in error, sued the Kansas City, Mexico Orient Railway Company, plaintiff in error, and C. B. McGee, in damages for personal injuries. On April 18, 1911, there was trial to the court and judgment for plaintiff and against the defendant company
and in favor of McGee, and the company brings the case here without making McGee a party to this proceeding in error.
This was the precise state of the record in Humphrey et al.v. Hunt, 9 Okla. 196, 59 P. 971, where a motion to dismiss was sustained for want of necessary parties, as is sought to be done here. In that case Maggie Hunt sued Lewis Humphrey and others in damages for personal injuries, which resulted in a verdict and judgment rendered and entered for plaintiff and against all defendants save one Belt, who had judgment against plaintiff. The defendants against whom the judgment went prosecuted proceedings in error, serving only plaintiff with the case-made. In sustaining the motion the court, in effect, held that, as Belt might be prejudicially affected by a reversal of the joint judgment by which he was discharged from all liability to the plaintiff, he was a necessary party to the appeal, and dismissed the cause. We have followed this ruling in Strange et al. v. Crismon, 22 Okla. 841, 98 P. 937; Boardof County Commissioners, etc., et al. v. Lemley, 23 Okla. 306,101 P. 109; Weisbender et al. v. School District, etc.,24 Okla. 175, 103 P. 639; Spaulding Manufacturing Co. v. Dill etal., 25 Okla. 395, 106 P. 817, and the American National Bankof McAlester v. Mergenthaler Linotype Co., 31 Okla. 533,122 P. 507. And this too, although, as here, after the time for the service of the case-made on McGee plaintiffs in error have amended their petition in error by making McGee a party defendant in error in this court, and he has entered his appearance and waived service of the case-made, for the reason that a failure to serve the case-made upon McGee within the time allowed defeats the jurisdiction of this court and prevents a review of the judgment, although he subsequently appeared in this court and waived service of the case-made.American Nat. Bk. v. Mergenthaler, etc., Co., supra. The appeal is dismissed.
All the Justices concur.