Bruner v. Nordmier
| Decision Date | 22 June 1915 |
| Docket Number | 6857. |
| Citation | 150 P. 159,48 Okla. 415,1915 OK 495 |
| Parties | BRUNER v. NORDMIER. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Within the time allowed for bringing proceedings in error in this court, amendments to a petition in error are generally allowed as of course.
A petition in error may be amended, after the expiration of the time allowed for bringing proceedings in error, where the amendment is one of form and not of substance; and where certain necessary defendants in error have, within proper time, been brought into this court by summons in error, or waiver thereof in writing, but their names were inadvertently omitted from the petition in error, an amendment, inserting their names, is one of form, and not of substance.
Where it is sought to bring defendants in error into this court by personal service of summons in error on such parties, the summons must be served in the manner required in the commencement of an action in the trial court.
(a) In case such party is a minor, over the age of 14 years, he may be served personally, in like manner as an adult.
(b) If the minor is under 14 years of age, the summons in error must be personally served "on him, and also on his guardian or father," or if neither of those (guardian or father) can be found, then upon his mother, or the person in control of him, or with whom he lives; if either of such persons can be found, preference being given in the order named.
Personal service of a summons in error alone on the "guardian," or "next friend," of an infant is bad, and fails to give this court jurisdiction of the infant, for the simple, but quite sufficient, reason that it is not authorized by statute.
A summons in error, however, may be served on the attorney of record in the lower court, just as effectually and with as much binding force as if served upon the party; and such attorney of record, upon whom it would be legal to serve a summons in error, may, in writing, "waive the issuing and service" of the same; and, as the statute authorizing this method of obtaining jurisdiction makes no exceptions, it applies to defendants in error, who are minors, and irrespective of their age, and with like effect as to adults.
Commissioners' Opinion, Division No. 1. Error from the District Court Pontotoc County; Tom D. McKeown, Judge.
Action by G. C. Nordmier against J. M. Bruner. Judgment for plaintiff, and defendant brings error, and plaintiff moves to dismiss. Motion denied.
H West, of Ada, and Stuart, Cruce & Cruce, of Oklahoma City for plaintiff in error.
C. F. Green, of Ada, for defendant in error.
The following grounds are set up as sufficient to cause the dismissal of this appeal: (1) Because some of the parties in the trial court are not made parties in the petition in error; (2) because of want of proper service of summons in error on Laura Underwood, a minor. The second ground is disputed by plaintiff in error, who shows that the attorney for the minor waived the issuance and service of summons in error. The first ground is admitted; but it is met with a formal motion, asking to amend the petition in error by adding the names of the omitted defendants below. We will consider these points in the order of their first statement above.
1. Can the petition in error be amended, by the insertion of names of omitted parties? In this case, defendant in error, Nordmier, was the plaintiff below, and plaintiff in error, Bruner, was one of several defendants, one of whom, Laura Underwood, was a minor. The defendant, Bruner, seems to have been the only party dissatisfied with the result of the judgment, and he alone brings error. Case-made was served on plaintiff, Nordmier, and all of Bruner's codefendants. They all signed stipulations, waiving the right to suggest amendments and as to settling and signing case-made, and the stipulation further recited:
"We, the undersigned plaintiff and defendants, on whom service of the above and foregoing case-made was had, do hereby waive the issuance and service of summons in error from the Supreme Court of the state of Oklahoma."
Except as to the minor, it is not disputed but that the remaining parties would be properly in this court if they had been brought into the wording of the petition in error. The case-made contains all the proceedings as affecting all these parties, was served on all of them, and is attached to and by specific language made a part of the petition in error. The caption of the petition in error names only Nordmier as defendant in error, but in the body of the petition, the proceedings are described as resulting in a judgment against Bruner, "wherein G. C. Nordmier is plaintiff and J. M. Bruner et al., is defendant." If, instead of referring to the other parties by "et al.," the names had been properly inserted in the body of the petition in describing the cause, and averring error it could hardly be contended that they were not sufficiently described as defendants in error, even though not designated as such in the caption. Therefore it seems to us that to allow them inserted now is merely to allow an amendment as regards a mere formal matter, which, for the reason that the parties are already properly in this court, could not substantially prejudice their rights. It is true that the petition in error cannot be amended as to any matter of substance, after the time allowed for appeal has expired; but the adding or striking out the name of a party, where process has been duly served upon him, thus bringing him before the court, is not a matter of substance. We think the decisions of this court furnish abundant authority to support the holding that an amendment as to form only, and not of substance, may be made as herein ruled.
In Springfield Fire & Marine Ins. Co. v. Gish, Brook & Co., 23 Okl. 824, 102 P. 708, it was said in the syllabus:
"A petition in error, in the title of which defendants in error are designated by their firm name only, is not fatally defective, and will not, on such account, be dismissed without first giving leave to plaintiff in error to amend, where the judgment appealed from is correctly described in the petition in error, and where such petition in error, aided by the case-made, which is attached to, and made a part of, the petition in error, discloses the names of the individuals constituting the partnership."
In Haynes et al. v. Smith, 29 Okl. 703, 119 P. 246, the rule is stated as follows:
And in McConnell v. Cory, 33 Okl. 607, 127 P. 259, it is held:
"Within the time allowed for bringing proceedings in error in this court, amendments to a petition in error are generally allowed as of course; thereafter matters of form, as a rule, may be corrected, but no new allegations of error can be made."
In Thompson et al. v. Murray, 34 Okl. 521, 125 P. 1133, it appears that the motion for a new trial was overruled May 31, 1910, and the proceedings in error filed in this court May 29, 1911. On June 23d, defendant in error filed a motion to make the petition in error more definite and certain by stating the names of the plaintiffs in error on behalf of whom the petition in error was prosecuted, which motion was, on September 12th, sustained, showing that an amendment of such a character is permissible, although the above case was afterwards dismissed for failure to comply with the order of amendment and for other grounds.
For the reason that its facts are so similar to the case at bar, and the rule announced is so in accord with our holding here, we set out the following from the Supreme Court of Texas, in Coe et al. v. Nash, 91 Tex. 113, 41 S.W. 473 ...
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