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 1915-05

Grimes v. West , 47 Okla. 436 ( 1915 )


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  • This action was instituted in a justice of the peace court of Stephens county, and from the judgment there rendered appeal was taken to the county court. Trial was had August 14, 1914, resulting in a judgment in favor of plaintiff and against defendants, C. L. Grimes and Frank Goodman. A motion of defendant C. L. Grimes to set aside the judgment, and for a new trial, was filed August 15th and overruled August 20th, from which action of the court said defendant appeals.

    Defendant in error, Henrietta West, has filed a motion to dismiss the appeal upon the ground that Frank Goodman, who was a party defendant, has not been served with case-made in this action. An examination of the record discloses that there has been no service of the case-made upon Frank Goodman or his attorney, and the objection to the consideration of the appeal must be sustained, for it is a well-established rule of this court that where a joint judgment has been rendered against two defendants, they must be joined in a proceeding in error in this court, either as plaintiffs or defendants in error, before such judgment can be reviewed; and, where the review is sought by means of a petition in error and case-made, service of the case-made within the time prescribed by statute must be had upon each of them or their attorneys. A failure so to serve the case-made upon a party to a joint judgment who will necessarily be affected by a reversal *Page 438 thereof defeats the jurisdiction of the appellate court and prevents a review of the judgment. Humphrey et al. v. Hunt,9 Okla. 197, 59 P. 971; American Nat. Bank of McAlester et al.v. Mergenthaler Linotype Co., 31 Okla. 533, 122 P. 507;Appleby et al. v. Dowden, 35 Okla. 707, 132 P. 349; SchoolDist. No. 29, McClain County, v. First Nat. Bank, 40 Okla. 568,139 P. 989; Tucker v. Hudson et al., 38 Okla. 790,134 P. 21; Bowles et al. v. Cooney et al., 45 Okla. 517, 146 P. 221.

    For the failure to serve case-made upon defendant in error Frank Goodman the appeal is dismissed.

    All the Justices concur.