School Dist. No. 29 v. First Nat. Bank of Blanchard , 40 Okla. 568 ( 1914 )

A suit was instituted in the district court of McClain county by the First National Bank of Blanchard, one of the defendants in error, against W. A. Jones and school district No. 29 of McClain county, state of Oklahoma, and others, who were mechanic's lienholders. On a trial of the case to the court in April, 1911, a joint judgment in favor of the defendant in error herein, First National Bank of Blanchard, was rendered against school district No. 29, now plaintiff in error, and W. A. Jones (the contractor), for the sum of $2,154.95, together with interest thereon at 6 per cent. per annum from February 10, 1910, and costs of suit.

A motion for new trial on behalf of school district No. 29 was presented, heard, and overruled by the trial court, from which said final judgment school district No. 29 prosecutes an appeal to this court. The other defendant (W. A. Jones) in the joint judgment has not prosecuted an appeal from said judgment, and the same is final as to him. Plaintiff in error filed its petition in error in this court, and in its petition in error makes the First National Bank of Blanchard (the plaintiff below) and W. A. Jones (a codefendant of plaintiff in error in the court below) the defendants in error. Plaintiff in error presented to the attorney of the First National Bank of Blanchard a case-made, and service of same was accepted by the bank's attorney. W. A. Jones, one of the defendants in error, was never served with a case-made, and, so far as the record discloses, never had an opportunity to examine the same, or suggest amendments thereto; neither has he waived his right to have a case-made presented to and examined by him, etc. This appeal, being prosecuted from a joint judgment rendered in the district court of McClain county in favor of defendant in error, First National Bank of Blanchard, as stated, is before us for review.

A motion has been filed in this court by defendant in error, First National Bank of Blanchard, to dismiss the appeal upon the ground that the case-made attached to the petition in error is void because not served upon W. A. Jones (the contractor), who was a joint defendant with the plaintiff in error in the court below, and now a defendant in error. The motion to dismiss the appeal comes clearly within several of the decisions of this court, and, under the authority clearly laid down in those decisions, the motion to dismiss must prevail.May et al. v. Fitzpatrick et al., 35 Okla. 45, 127 P. 702;American Nat. Bank of McAlester et al. v. Mergenthaler Linotype Co., 31 Okla. 533, 122 P. 507;Thompson et al. v. Fulton, 29 Okla. 700, 119 P. 244; Price etal. v. Covington, 29 Okla. 854, 119 P. 626.

In the case of National Surety Co. v. Oklahoma PresbyterianCollege for Girls et al., 38 Okla. 429, 132 P. 652, in which is quoted the authorities just referred to, Chief Justice Hayes, in rendering the opinion of the court, said:

"All parties to a joint judgment must be joined, in a proceeding in error in this court, either as plaintiffs or as defendants in error before such judgment can be reviewed; and, where the review is sought by means of petition in error and case-made, service of the case-made within the time prescribed by the statute must be had upon all parties against whom the joint judgment is rendered who do not join in the appeal as plaintiffs in error, and who are made parties thereto as defendants in error, and failure to serve the case-made upon such parties will operate to prevent the same from being considered in this court."

In this suit the contractor, W. A. Jones, was a necessary party, and he was sued, and a joint personal judgment against him and school district No. 29 was rendered by the trial court. He was not represented by the attorney of his codefendant, school district No. 29; but the petitioner in error makes him one of the defendants in error, and counsel for plaintiff in error, in his brief, page 29, says the school district brings the case to this court with the First National Bank of Blanchard and W. A. Jones as defendants in error, praying that the cause be reversed, and judgment rendered that the complaint of the bank be dismissed.

The motion to dismiss the appeal is sustained, and said cause is dismissed.

All the Justices concur.