Strange v. Crismon

98 P. 937 | Okla. | 1908

The defendant in error insists that this proceeding in error should be dismissed for want of necessary parties. It is contended that the plaintiff in error Edward Strange, having pleaded that he had a right to an accounting between himself and his co-defendant S.E. Horton, this would have occasioned a judgment against the said Horton, if on accounting it had been found that she was indebted to the said Strange in excess of the amount of the note upon which the action is based. In the proceedings before the referee the said Strange filed his account against the said S.E. Horton, and she filed her account against the said Edward Strange, and upon this the referee found that no accounting in that action should be taken, and that the said Strange should take nothing upon the said claim for an accounting. The set-off of any balance that may be found due said Strange on such accounting against the note is merely a matter of incident, after the determination of the fact that there is such a balance due. If the case should be reversed and remanded for a new trial, the said S.E. Horton's interest, in maintaining the judgment of the lower court that no accounting should be taken, would have been determined here without giving her the right to be heard; she not having been made a party, either as defendant or plaintiff, in this proceeding in error.

Every necessary party to an appeal must either make a general appearance within the year following the rendition of the judgment, or the entering of the final order appealed from, or summons must issue within such time, and service thereof be had upon the defendant in error; and, when not so done, the appeal will be dismissed. Humphrey v. Hunt, 9 Okla. 196, 59 P. 971;Wedd v. Gates el al., 15 Okla. 602, 82 P. 808; Steele v.Baum, 51 Kan. 165, 32 P. 918. Is the said S.E. Horton a necessary party to this appeal? If this case was reversed, and such accounting should be ordered, the said S.E. Horton being a defendant, in the court below, as an indorser on said note, and such accounting was had, and the balance on the partnership settlement, if any, was less than the amount due on said note, judgment then would be rendered against the said Horton, as well as the defendant Edward Strange in such sum. It has been repeatedly held that, if a party can, by a reversal or modification of the judgment appealed from, be in any way affected thereby, he is a necessary party. Humphrey et al. v. Hunt et al., supra, and authorities cited therein on page 198 of 9 Okla., on page 971 of 59 Pac.; Wedd v. Gates et al., supra; Steele v. Baum, supra. Are all the necessary parties on this petition in error before this court? In the case of Outcalt v. Collier, 8 Okla. 476,58 P. 642, the rule is laid down by Mr. Chief Justice Burford that all parties who are parties to the proceedings in the trial court, and whose interests will be adversely affected by a reversal of the judgment, must be brought into the appellate proceedings. And, further, that 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 interests the judgment has become final by the failure to appeal, the appeal will be dismissed.

In the case of County Commissioners v. Harvey et al.,5 Okla. 471, 49 P. 1007, Mr. Justice Bierer, speaking for the court, said:

"From these numerous authorities it would appear that the proposition as to what parties must be brought before the Supreme Court in order to warrant a review of the questions sought to be presented on appeal has been fully adjudicated and the rule clearly fixed. And the rule appears to be that all persons who were parties to the proceeding in the trial court, and whose interests will be affected by a reversal of the judgment, must be brought into the appellate proceeding. And also, where the interests of those who are brought as parties into the appellate proceeding will be injuriously affected by a reversal or modification of the judgment complained of as to such parties, without a reopening of the case as to other parties as to whose interests the judgment has become final by failure to appeal, so likewise the proceeding will be dismissed."

In the case of Great Western Mfg. Co. v. Richardson,57 Kan. 661, 47 P. 537, the court said:

"The rule is well settled, and has often been enforced by this court, that all persons against whom a joint judgment has been rendered must be made parties to a proceeding to reverse such judgment, and a failure to join any of them, either as plaintiffs or defendants, is ground for the dismissal of the case."

A long line of reported cases might be cited to support this proposition, but we shall refer to only the following:McPherson v. Storch, 49 Kan. 313, 30 P. 480; Loan Co. v.Lumber Co., 53 Kan. 677, 37 P. 132; Norton v. Wood,55 Kan. 559, 40 P. 911; Investment Co. v. National Bank, 56 Kan. 49, 42 P. 321; Bain v. Conn. M. Life Ins. Co., 3 Kan. App. 346, 40 P. 817; Bonebrake v. Aetna Life Ins. Co., 3 Kan. App. 708, 41 P. 67. In the case of Jones Stationery Paper Co. v.Hentig, 31 Kan. 322, 1 P. 533, Mr. Justice Valentine, speaking for the court, said: "In no case should a judgment be interfered with by the Supreme Court, where one of the parties to the judgment is not a party in the Supreme Court." See, also, Wedd v. Gates et al., 15 Okla. 602, 82 P. 808.

In this case the petition in error will be dismissed.

All the Justices concur.