City of Sapulpa v. Young
| Decision Date | 20 January 1931 |
| Docket Number | 20699. |
| Citation | 296 P. 418,147 Okla. 179,1931 OK 6 |
| Parties | CITY OF SAPULPA v. YOUNG. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Feb. 24, 1931.
Syllabus by the Court.
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.
Judgment must be based on definite and regular proceedings disclosed by record.
A judgment in a court of record must be based upon definite and regular proceedings, which the record must disclose.
To secure review of ruling on demurrer to evidence, motion for new trial must be filed (Comp. St. 1921, § 782).
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.
Where several judgment may be entered, and court sustains demurrer to plaintiff's evidence as to some of defendants plaintiff must except to judgment, file motion for new trial and, on overruling thereof, state exception and give notice of intention to appeal (Comp. St. 1921, § 782).
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.
Errors occurring at trial are not reviewable, unless presented on motion for new trial, and acted on, and motion and ruling thereon are preserved by bill of exceptions.
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 et al., 51 Okl. 189, 151 P. 688.
On plaintiff's recovery of judgment against some of defendants, plaintiff, after defendants file motion for new trial and prepare and serve case-made, may attach to case-made cross-petition in error (Comp. St. 1921, §§ 782, 785, 663).
If a plaintiff recovers a judgment against one or more of the defendants, and the defendant or defendents 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 Okl. 291, 203 P. 231.
Case-made need be served only upon adverse party on appeal from several judgment (Comp. St. 1921, §§ 663, 782, 784, 785.
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.
Any one of defendants may appeal without making other defendants parties, where there was no adverse interest between them (Comp. St. 1921, § 782).
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 Okl. 177, 239 P. 177.
Case-made may be prepared by any party desiring to appeal who has filed motion for new trial and given notice of appeal (Comp. St. 1921, § 782).
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.
Case-made must contain statement of proceedings and evidence necessary to present errors complained of to Supreme Court; it is not necessary for several appellants to each make, serve, and file separate case-made (Comp. St. 1921, § 782).
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.
Filing of cross-petition in error with transcript or case-made constitutes commencement of proceeding in error; cross-appeal will not be dismissed because cross-plaintiff in error did not serve case-made (Comp. St. 1921, § 782).
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 cross-petition 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).
No appeal should be dismissed because party in court below is not made party to petition in error (Comp. St. 1921, § 782).
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.
Notice of intention to appeal, coupled with filing of petition in error and proper record, confers jurisdiction upon reviewing court over parties to judgment (Comp. St. 1921, § 782).
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.
All parties of record in trial court other than plaintiff in error and parties not appearing at trial or filing disclaimer are parties defendant in error (Comp. St. 1921, § 782).
Under section 5238, Rev. Laws 1910, as amended by act approved March 23, 1917 (Laws 1917, c. 219), 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 defendants 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,...
To continue reading
Request your trial