Dr. Koch Vegetable Tea Co. v. Davis
| Decision Date | 22 December 1914 |
| Docket Number | 3596. |
| Citation | 145 P. 337,48 Okla. 14,1914 OK 643 |
| Parties | DR. KOCH VEGETABLE TEA CO. v. DAVIS ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Section 4659, Rev. Laws 1910, is applicable, by analogy, to the commencement of proceedings in error in this court.
Where two or more parties are necessary as defendants in error in this court, and the petition in error with case-made has been filed within the time allowed by law, and legal service of summons had within such time on one of the necessary defendants in error, the proceeding in error has been "commenced" as to all the defendants in error, in so far as the limitation on the commencement of proceedings in error is concerned, in cases where the necessary defendants in error are all " joint contractors or otherwise united in interest."
(a) In such a case a necessary party defendant may be summoned into this court, even though 60 days have elapsed after the time allowed by law for filing petitions in error in this court.
Commissioners' Opinion, Division No. 2. Error from District Court, Major County; W. L. Moore, Judge.
Action by the Dr. Koch Vegetable Tea Company, a corporation, against William Davis and others. Judgment for defendants, and plaintiff brings error. Former opinion withdrawn, petition for rehearing granted, and motion to dismiss overruled.
Carlisle & Edwards, of Oklahoma City, for plaintiff in error.
A Fairchild, of Enterprise, Or., and R. N. McConnell, of San Francisco, Cal., for defendants in error.
A joint judgment was entered in this case against William Davis and William Iams, on a written obligation, September 26, 1911. On February 13, 1912, a petition in error was filed in this court, naming both Davis and Iams as defendants in error. Defendant Iams waived service of summons in this court, and entered his appearance. Defendant Davis has never been brought into this court by summons, appearance, or otherwise. On November 5, 1913, defendant in error, Iams, filed a motion to dismiss the appeal on the ground that Davis, one of the judgment debtors, had not been brought into this court. On November 11, 1913, plaintiff in error filed a motion, asking to withdraw the case-made and have same corrected by striking the name of Davis from the judgment, because no judgment had been taken against him, and the insertion of his name in the judgment entry was a mere clerical error. Leave to withdraw and correct, under the supervision of the trial court, was allowed on November 25, 1913. The matter was heard by the trial judge December 18, 1913, and he refused to allow and certify the proposed correction. On December 30, 1913, the plaintiff in error filed a motion, reciting the above motion to withdraw case-made, the order allowing same, and the refusal of the trial judge to allow and certify the corrections requested, together with averments that Davis was not served with process and had not appeared in the proceedings below, and that the attorneys who filed pleadings for Davis were without authority so to do, etc., and prayed:
"That this court, or some judge thereof, hear and settle the facts in dispute and to make an order correcting and amending said case-made by including a copy of the summons * * * and the statements contained in the affidavit of the clerk, etc., * * * including * * * the statement of the firm of Fairchild and Brady made in open court as set forth in the affidavit of F. W. Madison and V. M. Lord, filed herein, and by striking out the name of Wm. Davis from the journal entry of final judgment," etc.
On January 6, 1914, the following order appears to have been made in this court:
"And now on this day it is ordered by the court that the motion of plaintiff in error herein to correct case-made be and the same is hereby, sustained."
Within 15 days thereafter the defendants in error filed a motion for a rehearing on the order above set out, and that it be set aside, and renewing the motion theretofore made to dismiss the appeal for want of necessary parties. This motion was pending, undisposed of, and was not called to our attention and the case was written on its merits, under the supposition that the motion to dismiss had been finally passed on and was no longer a question in the case. The condition of the record, and of this important and undisposed of motion, is strenuously urged upon us on motion for rehearing, and it is again insisted that the appeal should be dismissed.
(1) We have examined the multitude of motions and counter motions in this case, only a part of them being specially mentioned above, and feel certain that the order herein above recited, which had the effect of amending and correcting the case-made in this court in many particulars, and especially by striking out of the judgment a joint judgment debtor, on ex parte affidavits, was inadvertently made, under a misapprehension of the facts. The order having been erroneously made on the facts shown by the record, it is not necessary to consider or discuss the enlarged powers conferred on the appellate courts by new sections inserted in the Harris-Day Code (5245-5247, and especially 5249, Rev. St. 1910). The important thing accomplished by the order was to strike Davis from the judgment. The defendant Davis was not served with process, it is true, but if the record of the proceeding show any one thing beyond question, it is that Davis appeared in the case. By attorney he filed his motion to require the plaintiff to separately state and number its causes of action. The journal entry shows he appeared by attorney and argued this motion, and when it was overruled was allowed an exception and, on request, 10 days to further plead. At the trial the record recites: "Defendant Davis appeared by his attorney, but was wholly in default, having filed no answer." The journal entry of judgment recites: "The court finds that the plaintiff is entitled to judgment against * * * Wm. Davis and Wm. Iams," etc. The journal entry is O. K.'d by A. Fairchild, attorney for Wm. Davis. The service of case-made was accepted by Wm. Davis, by his attorney. Likewise was an agreement as to amendments. The appeal bond ran in the name of both Davis and Iams. The petition in error filed in this court, long after the trial, brought Davis in as a defendant in error. Plaintiff in error's brief in this case, before it reached the motion stage, pointed out the default judgment against Davis, and argues error, because the judgment was for only $38.55, while as principal debtor in the written contract it clearly should have been for more. So the defendant Davis was in this case in the proceedings below, and in the judgment entered, if a record in this court amounts to anything. It follows that he is a necessary party, and ought to have been brought into this appeal. The order striking Wm. Davis from the case-made should be set aside.
(2) With Davis in the record, it is apparent that he is a necessary party. Any judgment this court may render will affect him and his codefendant Iams alike. This being true, this court cannot proceed to final judgment without his having been properly brought into this court by process, actual or constructive, or by waiver. At this point we are met with the contention that it is now too late to summon Davis into this court; the contention being that, as the time for filing the proceeding in error and the 60 days thereafter allowed, under certain circumstances, for service of summons, having passed, it is now too late. This requires a somewhat detailed consideration of some of our former opinions. The whole question turns on the one inquiry: Is the proceeding in error, as against Davis, barred by the provision of the statute, limiting the time within which proceedings may be commenced in this court to six months after the final order appealed from? Chapter 18, Sess. Laws 1910-11, page 35.
This brings up the question, What constitutes the commencement of a proceeding in error in this court, in so far as the limitation of such proceedings is concerned?
In School Dist. 39 v. Fisher, 23 Okl. 9, 99 P. 646, it is held that the general statutes regulating the commencement of ordinary actions, as affected by the statute of limitations apply in this court to proceedings in error by analogy. The statute...
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