Bd. of Cnty. Comm'rs of Logan Cnty. v. Cora

• Decision Date: 30 July 1897
• Citation: 5 Okla. 468,49 P. 1006,1897 OK 52
• Parties: THE BOARD OF COUNTY COMMISSIONERS OF LOGAN COUNTY v. CORA V. HARVEY et al.
• Court: Oklahoma Supreme Court

1897 OK 52

49 P. 1006

5 Okla. 468

THE BOARD OF COUNTY COMMISSIONERS OF LOGAN COUNTY v. CORA V. HARVEY et al.

Supreme Court of Oklahoma

Decided: July 30, 1897

Error from the District Court of Logan County.

Action on the official bond of Cora V. Harvey, nee Diehl, as register of deeds of Logan county. Judgment for defendants, from which the plaintiff appeals. Motion to dismiss appeal. Denied.

Syllabus

¶0 1. REME COURT--Parties--Case-Made. The rule requiring that all parties who will be affected by a reversal of the judgment appealed from, or whose being made parties to the appellate proceeding is necessary to protect the rights of others, as has been enunciated by the supreme court of Kansas, is recognized as the rule in this territory; but this rule does not require that persons who were not made parties in the lower court should be served with case-made, or brought into this court.

2. CASE-MADE--Transcript. Although a case-made may be void as to a part of the defendants, on account of the insufficiency of the service on the attorney for the parties (which question as to the service we do not now decide, it being unnecessary in this case), yet if attached to the case- made there is a certificate of the clerk of the district court which is sufficient to present a transcript of the record of the case, all questions which are presented by the record, and where exceptions were saved, are properly presented for consideration by the supreme court.

3. TRANSCRIPT-- Demurrer--Exception--Case-Made. A demurrer is one of the pleadings in a case, and is a part of the record of the trial court, and a ruling of the court upon a demurrer, where an exception has been saved, may be presented to this court for review upon a transcript of the record, without incorporating the demurrer and the exception into a case-made.

J. C. Strang, County Attorney, and Huston & Huston, for plaintiff in error.

Asp, Shartel & Cottingham, for defendants in error.

BIERER, J.:

¶1 Plaintiff below, plaintiff in error here, filed its amended petition in the district court of Logan county on the 11th day of September, 1895. The parties named in this amended petition were: "Board of County Commissioners of the County of Logan, plaintiffs v. Cora V. Harvey, (nee Diehl), H. C. Diehl, Isaiah Smith, Dan-ton Miky, C. A. Marshall, John Cammack, William Plagg, E. W. Peterson, Peter O'Hare, E. R. Duvall, L. E. Pitts, M. Collar and William Baxter ,defendants."

¶2 By the amended petition plaintiff seeks to recover judgment against the defendant Cora V. Harvey, (nee Diehl), as principal, and the other persons named as sureties upon the official bond of the said Cora V. Diehl, as register of deeds of Logan county. The record does not contain any original petition, and contains no summons, if one was ever issued.

¶3 It appears that a demurrer to the amended petition was filed on behalf of M. Collar, by his attorney, S. D. Decker, and another demurrer filed by Louis E. Pitts, William Baxter and Cora V. Harvey, by their attorney, George Gardner. That these demurrers were overruled, and an answer was then filed by the defendants, Harvey, Pitts, Baxter and Smith, by their attorney, George Gardner, and by Collar and Plagg, by their attorney, S. D. Decker.

¶4 The record shows no appearance at any time by any of the other persons named as defendants, and, as before stated, no service of any process upon them. The amended answer contained three paragraphs, and was unverified, the first paragraph being a general denial, and the other two setting up special defenses.

¶5 The plaintiff, by its attorney, A. H. Huston, filed a demurrer to the second and third paragraphs of the answer, which was overruled, and plaintiff electing to stand upon the ruling on the demurrer, judgment was rendered, as the journal entry states, "against said plaintiff and in favor of said defendants, dismissing said action, and for costs of suit."

¶6 Time was given the plaintiff to make and serve a case-made, and within the time allowed, service of case-made was accepted by George Gardner, as attorney of record for the defendants, Harvey, Pitts, Baxter and Smith. The only proof of service of case-made upon the defendants Collar and Plagg is the following:

"Territory of Oklahoma, County of Logan.

ss.

"A. H. Huston, being duly sworn, upon his oath deposes and says that he is the attorney for the plaintiff in the foregoing cause; that he served the above case-made on S. D. Decker, the attorney for some of said defendants, by placing said case-made upon the official desk of the said S. D. Decker in his office in the city of Guthrie, on the 22d day of October, A. D. 1896, and leaving the same there for a period of five days thereafter.

A.H. HUSTON.

"Subscribed and sworn before me this day of , 1896."

¶7 There was no effort to serve the case on H. C. Diehl, Danton Miky, C. A. Marshall, John Cammack, E. W. Peterson, Peter O'Hare and E. R. Duvall.

¶8 On the 28th day of November, 1896, George Gardner, as attorney of record for the defendants Pitts, Cammack, Baxter, Harvey and Smith, waived issuance and service of summons in the supreme court of Oklahoma Territory, and entered appearance in said court for said defendants.

¶9 Motions are made to dismiss this proceeding by L. E. Pitts, M. Collar and John Cammack. All these motions are presented by counsel on two grounds. First, because the case-made was not served, or attempted to be served, upon the defendants H. C. Diehl, Danton Miky, C. A. Marshall, John Cammack, E. W. Peterson, Peter O'Hare and E. R. Duvall. And, second, because it was not properly served, and there is no proof of even the kind of service claimed, on the defendants M. Collar and William Plagg. We consider the motions on these grounds in their order.

¶10 This action was brought on a bond, and it was sought to hold all the defendants who were sued liable for the breach of the bond. As the action was dismissed, at least as to all the defendants who filed their answer, the contention of counsel for defendants is that when one party to an action appeals from the judgment of the district court to this court, he is required to make all parties adverse in interest to him, parties to the proceeding in error, and must serve case-made upon all such parties in interest, and must, in some manner, procure service and have them before the supreme court, and he cites the following cases from the supreme court of Kansas, from which we have taken our code of civil procedure, in support of this contention: Ex parte, John Polster, 10 Kan. 204; Armstrong v. Durland, 11 Kan. 15; Hodgson v. Billson, 11 Kan. 357; Bassett v. Woodward, 13 Kan. 341; Richardson v. McKim, 20 Kan. 346; Thompson v. Wheeler & Wilson Mfg. Co., 29 Kan. 476; Jones Stationery & Paper Co. v. Hentig, 1 P. 529; In re. Brown's Appeal, 1 P. 78; McPherson v. Storch, 30 P. 480; Barber Asphalt Paving Co. v. Botsford, 31 P. 1106; Steele v. Baum. 32 P. 918; Central Kansas Loan & Inv. Co. v. Chicago Lumber Co., 37 P. 132; Norton v. Wood, 40 P. 911; Hughes v. Miller, 42 P. 696; Eaton v. Mendenhall, 44 P. 683.

¶11 We have examined carefully all these cases, and they all bear upon the question here presented, excepting the case of Thompson v. Wheeler & Wilson Mfg. Co., 29 Kan. 476, which was upon the question as to how and in what manner a party must be served in order to be brought into the supreme court, instead of what parties must be brought before the court.

¶12 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 re-opening 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.

¶13 It is claimed by counsel for defendants in error that this rule should be applied to this case, and this proceeding dismissed because certain of the defendants, excepting Collar and Plagg, were not served with case-made. Counsel do not argue the phase of the case presented by the fact that these persons, while they are named in the petition as defendants, do not appear from the record to have been parties to the proceedings, and, herein, we think, is where their contention must fail.

¶14 A careful examination of all the Kansas cases shows that wherever a proceeding has been dismissed in the supreme court because of failure to bring into that court some person whose interests would be affected by a reversal of the judgment below, or failure to reverse the judgment below as to whom, would affect some defendant in error who is brought to the supreme court, the person who is not brought into the supreme court was a party the judgment appealed from. This appears in each and every case, and we have been unable to find, in any of the Kansas cases, a case where the phase of the matter now presented was decided.

¶15 While these persons, excepting Collar and Plagg whom, it is insisted, should be...