Saunders v. Mullen

119 P. 963 | Okla. | 1911

This cause comes on to be heard upon the motion of defendants in error to dismiss the appeal, based upon several grounds, one of which, at least, we think is well taken. The third ground for dismissal is that:

"This court is without jurisdiction to entertain this appeal, for the reason that all the parties against whom judgment was rendered in the trial court have not been made party plaintiffs in error on appeal."

The record shows that judgment was rendered below against S. F. Saunders, A. O. Mallory, Cassie Pritchard, D. L. Brewer, T. Maynard, J. H. Jennings, and Newt Singleton, O. M. Nichols, N. B. Woolsey, R. E. Farris, Henry Pruitt, and W. N. Brown, and that Saunders, Mallory, Pritchard, Brewer, Maynard, Jennings, and Singleton joined as plaintiffs in error, making Mullen and Robberson defendants in error, eliminating as parties in this court Nichols, Woolsey, Farris, Pruitt, and Brown. The point is made by counsel for plaintiffs in error that as part of the judgment debtors who are omitted as parties were merely sureties they could not be affected by a reversal of the judgment; and therefore the appeal ought not to be dismissed on that ground.

This contention cannot be sustained. The judgment is joint in form, and it is impossible to distinguish the case at bar fromStrange et al. v. Crismon, 22 Okla. 841, 98 P. 937, where the parties omitted from the record were sureties, and the appeal was dismissed upon the authority of a long line of Oklahoma Territory cases. This court has followed Strange et al. v.Crismon, supra, in Weisbender et al. v. School District No. 6Caddo County, 24 Okla. 173, 103 P. 639; John v. Paulin etal., 24 Okla. 636, 104 P. 365; Hughes v. Rhodes,25 Okla. 172, 105 P. 650; Seibert v. First National Bank of Okeene,25 Okla. 778, 108 P. 628; Continental Gin Co. v. Huff et al.,25 Okla. 798, 108 P. 369; First National Bank of Holdenvillev. Jacobs, 26 Okla. 840, 111 P. 303; Vaught v. Miners' Bankof Joplin, 27 Okla. 100, 111 P. 214.

The appeal must be dismissed.

All the Justices concur.