John v. Paullin , 24 Okla. 636 ( 1909 )

Intervener filed his petition in error in this court, and plaintiff, as one of the defendants in error, entered his general appearance within one year after the rendition of judgment in the lower court, but no summons in error was issued and served upon any of the defendants, nor did any of them enter a general appearance in this court within one year from the rendition of the judgment. Defendant in error, plaintiff below, now moves the court to dismiss the proceeding, upon the ground that all the necessary parties had not been brought into this court by service of summons in error or by entry of general appearance within one year after the rendition of the judgment. In reply to this motion plaintiff in error insists, first, that none of the defendants in the lower court are necessary parties; and, second, that if any of them are necessary parties, by reason of section 4748, Wilson's Rev. Ann. St. 1903, which provides that in case a person entitled to a proceeding in error be an infant, such proceeding shall be commenced within one year after rendition of judgment, exclusive of the time of such disability, the time in which to bring a proceeding in error has not yet expired, since his wards have not yet attained their majority, and that he should be permitted at this time to have summons in error issued and served upon the necessary parties.

In consideration of his first contention it will be unnecessary for us to determine whether all of the defendants in the lower court are necessary parties to this proceeding, for, if any one of them is a necessary party to this proceeding, then the motion will have to be sustained.Strange et al. v. Crismon, 22 Okla. 841, 98 P. 937. In CountyCommissioners v. Harvey et al., 5 Okla. 468, 49 P. 1006, it is held that all persons who are parties to a proceeding in the trial court, and whose interest will be affected by reversal of the judgment on appeal, must be brought into the appellate proceeding. The judgment of the trial court in the case at bar declares the lease contract of Eli P. Williams to be a valid contract, and that defendant in error, Paullin, by virtue of his being the owner of the fee-simple title to the land, under a warranty deed from the grantees of Loman, is entitled to the rents under such contract, and awards him judgment against Eli P. Williams for the sum of $25 as rents for the year 1907. Eli P. Williams has not appealed from this judgment, and, as between him and defendant in error, Paullin, it has become final. If, on consideration of this appeal on its merits, it should be found that the judgment of the trial court should be reversed and the intervener's plea of intervention should be sustained, then intervener would be entitled to collect the rents under said contract, and such reversal of the judgment would prejudicially affect the rights of Eli P. Williams, and he is therefore a necessary party to this proceeding.

Intervener's second contention is also without merit. Section 4748, Wilson's Rev. Ann. St. 1903, provides that all proceedings to reverse, vacate, or modify a judgment or final order shall be commenced within one year after the rendition of the judgment or the making of the final order complained of, except in cases where the person entitled to such proceedings may be an infant, a person of unsound mind, or imprisoned, in which event such proceeding may be commenced within one year after the rendition of judgment, exclusive of the time of such disability. The second provision of this section does not include guardians. The plea of intervention in this case was not filed by intervener's wards. They never became parties to this action in the lower court, and have never become parties to the proceeding in this court. Intervener filed his plea of intervention in the lower court as guardian of such wards. He stated in his petition that he filed same as guardian of said minor children, but this statement does not make the minors parties to the action. Gorham v. Gorham, 3 Barb. Ch. (N.Y.) 24;West v. West, 90 Ala. 458, 7 So. 830. The proceeding in the trial court was prosecuted by the intervener, plaintiff in error here, in his own name as guardian, and this proceeding is brought in the same manner. Had the minors been parties to the action in the lower court, represented by their next friend or guardian ad litem, the provisions of the statute relied upon by intervener would apply, and they would have one year after the removal of their disability in which to prosecute a proceeding in error. Moss et al. v. Hall, 79 Ky. 40; Ridgley v. Bennettet al., 13 Lea. (Tenn.) 206; Vordemark et al. v. Wilkinson,147 Ind. 56, 46 N.E. 336. But this provision of the statute does not extend to suits prosecuted by the guardian in his own name, and the proceeding in error in this action is controlled by the first provision of said section 4748, and must be commenced within one year after the rendition of judgment, and all necessary parties to the proceeding must be brought into the appellate proceeding, either by summons in error or by entry of general appearance, within that period. Strange et al. v.Crismon, supra.

The question whether a guardian may, in his own name, prosecute an action to remove a cloud from the title of his ward's real estate by an independent suit or by plea of intervention, as has been attempted to be done in the case at bar, is not presented by the motion before us or by the briefs filed by counsel, and upon that question we express no opinion.

Assuming for the purposes of this motion to dismiss, without deciding, that the guardian has such power, this proceeding must be dismissed for the reasons previously stated.

All the Justices concur.

ON PETITION FOR REHEARING. Denied January 11, 1910. (106 P. 838)APPEAL AND ERROR — Time for Taking Appeal — Effect of Stipulation. After the statutory time for appeal a judgment cannot be reviewed, even if all the parties stipulate that the appellate court may do so.