106 P. 817 | Okla. | 1910
On September 23, 1907, H. W. Spaulding, F. E. Spaulding, and E. H. Spaulding, partners under the firm name of the Spaulding Manufacturing Company, plaintiff in error, sued H. W. Dill, H. G. Mellot, and M. W. Krause in the United States Court for the Indian Territory, Southern District, at Ada. The complaint substantially states that defendants theretofore were "incorporated under the laws of the Indian Territory under the act of Congress of February 18, 1901, under the name of the Citizens" Bank Trust Company of Stonewall, I. T.," and thereafter engaged in a general banking business in said town, and held themselves out to the public for deposits; that each of said defendants was the owner of a large amount of stock in said bank, which they represented to the public as being duly paid up; that plaintiffs relied upon the financial standing of defendants, and on the faith of their large amount of subscribed stock in said bank, and made deposits therein to their credit, amounting, during the month of October, 1905, to $406.48, which defendants on demand have refused to pay; that since making said deposits said defendants have paid out all the funds of said bank; that said bank has no funds now on hand to pay plaintiff's claim — and prays judgment against defendants for said amount and costs.
Defendants filed separate answers, in effect admitting the incorporation of said bank, but denying knowledge, information, or belief that plaintiffs had deposited in said bank the amount set forth in their complaint. Further answering, they say that on February 20, 1909, one Ebey was duly appointed receiver of said bank by order of the United States Court for said district, who qualified and took charge as such of all the assets of said bank; that thereafter said court instructed said Ebey to institute legal proceedings against these defendants and others to recover of each the sum of $2,000, the amount alleged to be due said bank for stock alleged to have been purchased by said defendants, but not *397 paid for; that thereafter said Ebey accordingly brought suit against each of these defendants for said $2,000, then alleged to be due and unpaid; that defendants duly appeared in said suit, which is still pending in the district court of Okfuskee county, Okla., where the cause was transferred from the district court of Okmulgee county, the successor of the United States Court aforesaid — and denied their liability as subscribers to the stock of said bank, and filed a copy of their complaint and answer in said cause as exhibits to their answer, and prayed to be discharged, with their costs.
After reply, there was trial to a jury, in the district court of Pontotoc county, where the cause was transferred on the advent of statehood. At the close of plaintiff's testimony, defendant demurred thereto, which was sustained, and judgment rendered for defendants, dismissing plaintiff's suit and taxing it with the costs. After motion for a new trial filed and overruled, plaintiff brings the case here without serving on defendant M. W. Krause, or his attorneys, the case-made or a copy thereof. Our right to review is now questioned by a motion to dismiss on that ground. We think the motion well taken, provided, of course, Krause is a necessary party to this appeal. We think he is, for the reason that he might be prejudicially affected by a modification or reversal of the judgment appealed from.
If the motion for a new trial, which runs against all the defendants, including Krause, should be sustained, the judgment set aside, and a new trial granted, as he would on that trial be subjected to the risk of having judgment lodged against him, he should be joined as a necessary party to this appeal. That he would be so subjected has been held by the Supreme Court of Oklahoma Territory. Humphrey et al. v. Maggie Hunt,
The petition in error is dismissed.
All the Justices concur.
