City of Sapulpa v. Young, Case Number: 20699
| Citation | 296 P. 418,1931 OK 6,147 Okla. 179 |
| Decision Date | 20 January 1931 |
| Docket Number | Case Number: 20699 |
| Parties | CITY OF SAPULPA v. YOUNG. |
| Court | Supreme Court of Oklahoma |
¶0 1. Judgment--Statutory Provision for Judgment Where Several Parties Plaintiff or Defendant.
Where a civil action is commenced in a court of record in which, under the pleadings, evidence, and verdict, it is proper to enter a several judgment, as provided for under the statutes of this state, the court may give judgment for or against one or more of several plaintiffs, and for or against one or more of several defendants; it may determine the ultimate rights of the parties on either side, as between themselves, and it may grant to the defendant any affirmative relief to which he may be entitled. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment may be proper. The court may also dismiss the petition with costs in favor of one or more defendants, in case of unreasonable neglect on the part of the plaintiff to serve the summons on other defendants, or proceed in the cause against the defendant or defendants served in accordance with the terms and provisions of section 663, C. O. S. 1921.
2. Same--Judgment to Be Based on Proceedings Disclosed by Record.
A judgment in a court of record must be based upon definite and regular proceedings, which the record must disclose.
3. Appeal and Error--Review of Ruling on Demurrer to Evidence--Necessity for Motion for New Trial--Notice of Appeal.
The ruling upon a demurrer to the evidence is a decision occurring on the trial; and, in order to enable the Supreme Court to review such ruling, it is necessary that a motion for a new trial be made and filed within the time prescribed by law, and if the motion for a new trial is overruled, the party desiring to appeal from the order denying the motion for a new trial must give notice of intention to appeal as provided by section 782, C. O. S. 1921.
4. Same--Procedure Where Demurrer to Plaintiff's Evidence Sustained as to Part of Defendants.
In an action where a several judgment may be properly entered, and upon the conclusion of plaintiff's evidence the defendants demur thereto, and upon consideration of the demurrer the court sustains the same as to part of the defendants and overrules it as to one or more of the defendants, and the plaintiff desires to appeal to this court from the judgment sustaining the demurrer, it is the duty of the plaintiff to except to the judgment at the time and within the time fixed by statute, to file a motion for a new trial, and if the same is overruled to save an exception and give notice of intention to appeal from said judgment to this court as provided by law, and to perfect an appeal to this court within six months from the date of the order overruling such motion.
5. Same--Requisite Procedure for Review of Errors Occurring at Trial.
Errors occurring on the trial of a cause are not reviewable in this court, unless the same were brought to the attention of the trial court by motion for a new trial and acted upon, and such motion and the ruling thereon preserved by bill of exceptions, included in a transcript or incorporated in a case-made, filed with a petition in error in this court. Bilby v. Cathcart, 51 Okla. 189, 151 P. 688.
6. Same--Cross-Petition in Error by Plaintiff.
If a plaintiff recovers a judgment against one or more of the defendants and the defendant or defendants file a motion for a new trial within the time provided by law and give notice of intention to appeal and prepare and serve a case-made on plaintiff within the time fixed by law or as extended by order of the court or a judge thereof, and a true and correct case-made is settled and signed at the instance of the defendant or defendants against whom a judgment was rendered and filed in this court and the plaintiff files and causes to be attached to the case-made filed in this court, within six months after the date of the several judgment or order plaintiff is appealing from, a cross-petition in error, this meets the requirement of the laws of this state, now in force. Title Guaranty & Surety Co. v. Foster, 84 Okla. 291, 203 P. 231.
7. Same--Case-Made Required to Be Served Only on Adverse Party to Several Judgment.
When a several judgment is properly entered in an action, the case-made is only required to be served by the party appealing upon the adverse party to the several judgment appealed from.
8. Same--When Appealing Defendant Need not Make Other Defendants Parties.
Where there was no adverse interest between defendants in the trial court, any one of them may appeal, without making the other defendants parties. In re Wah-shah-she-me-tsa-he's Estate, 111 Okla. 177, 239 P. 177.
9. Same--Procedure for Appeal by One or More Parties Aggrieved--Case-Made.
The case-made may be prepared by any one or more parties desiring to appeal, who have preserved their right to appeal by filing a motion for a new trial, where one is required, and giving notice of appeal as required by law, and that the case-made is prepared and served within the time fixed by law or extended by order of the court or a judge thereof and that said case-made is true and correct and settled and signed in due time and filed in this court within the time allowed by law with a petition in error and a cross-petition or cross-petition in error attached.
10. Same--Requisite Contents of Case-Made--Separate Case-Made not Required Where Several Appellants.
The case-made must contain a statement of so much of the proceedings and evidence, or other matters in the action, as may be necessary to present the errors complained of to the Supreme Court, but it is not necessary for the several appellants to each make, serve, and file a separate case-made, as such a course of procedure would uselessly incumber the record.
11. Same--Perfection of Cross-Appeal by Filing Cross-Petition in Error Attached to Record Previously Filed.
The filing of a cross-petition in error attached to a transcript or case-made previously filed in the Supreme Court to reverse or modify the judgment or final order of the trial court is the commencement of a proceeding in error in the Supreme Court at the instance of the party filing the crosspetition in error. Such constitutes a cross-appeal, and such cross-appeal will not be dismissed because the cross-plaintiff in error did not prepare, serve, and have settled a case-made and file the same with his cross-petition in error; it appearing that the cross-petitioner filed a motion for new trial and gave notice of appeal, as provided by section 5238, Rev. Laws 1910, as amended by act approved March 23, 1917 (Laws 1917, c. 219).
12. Same--Notice of Appeal as Making All Parties of Record Parties to Appeal--Statutes.
Section 782, C. O. S. 1921, declaring that "no appeal shall be dismissed by" this court "because any party in the court below is not made a party to the appeal," means no appeal shall be dismissed because a party in the court below is not made a party to the petition in error, the notice of intention to appeal automatically making all parties of record in the lower court adverse parties to the proceedings in error when the same are filed in this court.
13. Same.
Under section 5238, Rev. Laws 1910, as amended by the act of the Legislature approved March 23, 1917 (Laws 1917, c. 219), notice of intention to appeal as therein provided, coupled with the filing in this court of a petition in error and proper record, confers jurisdiction upon this court over all the parties to the judgment and proceedings complained of, except parties to the action below who did not appear at the trial and take part in the proceedings from which the appeal is taken, and parties who filed a disclaimer in the trial court.
14. Same.
Under section 5238, Rev. Laws 1910, as amended by act approved March 23, 1917, all parties of record in the court from which the appeal is taken, other than the plaintiff in error and parties not appearing at the trial or filing a disclaimer, are parties defendant in error to the proceedings in error in this court, irrespective of whether or not they are named as such in the petition in error, provided the notice of intention to appeal is given as required by the statute, and the plaintiff in error otherwise appeals in due time by filing petition in error in the appellate court, with certified copy of a transcript of the record or proper case-made attached thereto.
15. Same--Determination by Court Whether Record Sufficient for Review or Susceptible of Correction.
This court will determine for itself whether the record is such as it has jurisdiction to review, and if not, whether the case-made may be corrected as provided in section 786, C. O. S. 1921, so as to present the errors complained of in the petition in error or a cross-petition in error, or either or both. Lillard v. Meisberger, 113 Okla. 228, 240 P. 1067.
16. Municipal Corporations--Duty of City to Keep Parks in Safe Condition.
A city must keep its public parks in a reasonably safe condition for the benefit of all persons using them.
Error from District Court, Creek County; Wayne W. Bayless, Assigned Judge.
Action by Lenora Young, a minor, by mother and next friend, Harriett Young, against the City of Sapulpa and others. Judgment against defendant city, and it appeals. Affirmed.
C. B. Rockwood, for plaintiff in error.
Wallace & Wallace and Wayne H. Lasater, for defendant in error.
¶1 This is an appeal from the district court of Creek county, wherein a judgment was rendered against the city of Sapulpa, plaintiff in error, in favor of Lenora Young, as defendant in error, as damages for personal injuries sustained by her while playing in a public park owned and operated by the city.
¶2 The action was originally commenced by ...
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