First Nat. Bank v. Jacobs
| Decision Date | 13 July 1909 |
| Citation | 111 P. 303,26 Okla. 840,1909 OK 167 |
| Parties | FIRST NAT. BANK OF HOLDENVILLE v. JACOBS. |
| Court | Oklahoma Supreme Court |
On Rehearing, July 12, 1910.
Syllabus by the Court.
All parties to an action who appear from the record to have an interest in the judgment appealed from must be made parties to the appeal, or must be given notice equivalent to severance and summons.
In an action of ejectment, a third party intervened, and alleged that plaintiff held only a legal title to the property in controversy as trustee for defendants who were the owners of the equitable title, subject to the lien of a mortgage owned by intervener and to the lien of a second mortgage owned by plaintiff. Intervener prayed for judgment declaring the title in defendants and for foreclosure of its mortgage, and for sale of the premises and application of the proceeds to the payment, first, of intervener's mortgage debt; and second, to the debt secured by the mortgage of plaintiff. From a judgment confirming the title in plaintiff and awarding him possession, intervener appealed. Held that the mortgagor defendants were necessary parties to the appeal.
Under the federal appellate procedure in force in the Indian Territory at the time of the admission of the state, where an appeal is allowed at the term at which the decree or judgment was rendered, but which is not perfected until after the term, or where an appeal is taken after the term, a citation is necessary to bring in the parties, and, if the citation is not served upon all the necessary parties to the appeal before the end of the next ensuing term of the appellate court and is not waived, the appeal becomes inoperative.
Appeal from the United States Court for the Western District of the Indian Territory at Wewoka; Louis Sulzbacher, Judge.
Action by John A. Jacobs against George B. Roderick and another, in which the First National Bank of Holdenville intervened, and from a judgment for plaintiff, directing that intervener take nothing against plaintiff but for judgment against defendants, the bank appeals. On motion to dismiss. Sustained.
W. J Horton, for appellant.
N. A Gibson and H. C. Thurman, for appellee.
HAYES J. (after stating the facts as above).
For convenience, we shall hereafter refer to the First National Bank of Holdenville, appellant, as intervener, and John A.
Jacobs, appellee, as plaintiff, and G. B. Roderick and Jessie Roderick as defendants. The only propositions which it will be necessary for us to consider arise on plaintiff's motion to dismiss the appeal. The ground upon which dismissal is asked is that the defendants, George B. Roderick and Jessie Roderick, have not been served with citation, and have not been otherwise made parties to the appeal. Intervener in its reply to this motion to dismiss answers that defendants are not necessary parties to the appeal, and that, if they are, no service of citation upon them was necessary for the reason that the appeal was allowed in open court at the term at which the decision was rendered, and that the defendants thereby had notice of it. This appeal was taken and perfected under the provisions of Act Cong. March 3, 1905, c. 1479, § 12, 33 Stat. 1081 (U. S. Comp. St. Supp. 1909, p. 219), which provides that appeals and writs of error shall be taken from the United States courts in the Indian Territory in the same manner that cases are taken by appeal, or writs of error, from the Circuit Courts of the United States to the United States Circuit Court of Appeals for the Eighth Circuit. These provisions of this act of Congress were before this court for construction in the case of Porter et al. v. Brook, 97 P. 645, and it was there held that said act put in force in the Indian Territory Act Cong. March 3, 1891, c. 517, § 11, 26 Stat. 829 (U. S. Comp. St. 1901, p. 552), which prescribes the procedure which governs appeals and writs of error by which judgments and orders of the United States courts may be reviewed in the United States Circuit Court of Appeal. The appeal in this case is therefore governed by the federal appellate procedure. In the federal appellate courts, the rule is that all parties to a suit who appear from the record to have an interest in the judgment appealed from must be made parties to the appeal, or must be given notice equivalent to summons and severance. Hardee v. Wilson, 146 U.S. 179, 13 S.Ct. 39, 36 L.Ed. 933; Davis v. Mercantile Trust Co., 152 U.S. 590, 14 S.Ct. 693, 38 L.Ed. 563; Farmers' Loan & Trust Co. v. McClure, 78 F. 211, 24 C. C. A. 66; Dodson v. Fletcher, 78 F. 214, 24 C. C. A. 69; Gray v. Havemeyer, 53 F. 174, 3 C. C. A. 497; Loveless v. Ransom, 107 F. 626, 46 C. C. A. 515.
We are therefore brought to the consideration of intervener's propositions in its answer to the motion to dismiss that the judgment appealed from in this action is not a joint judgment, and that defendants have no interest therein. In determining whether a party omitted from an appeal is a necessary party thereto, the courts have looked to the substance rather than to the form of the judgment in arriving at their conclusion whether such judgment is joint, and whether the omitted party has any interest therein. The judgment of the trial court confirms the title to the lot in controversy in plaintiff, and awards him possession thereof and $1,823 as damages for the detention of said property. It further adjudges that intervener take nothing against the plaintiff, but that it have judgment on its note against the defendants for the balance due thereon in the sum of $3,175. The theory of plaintiff's case in the trial court was that at the time of the execution and delivery of intervener's mortgage defendants had no interest in the lot in controversy that could be conveyed by said mortgage to the intervener, and that when the town-site commission listed and scheduled the lot to plaintiff, and he paid the government therefor and received the patent, the fee-simple title thereto became vested in him. The theory of the intervener's case in the trial court was that at the time of the execution and delivery of its mortgage defendants were the owners of the improvements on the lot, and had an interest therein that was subject to conveyance by mortgage; that such interest was conveyed to it by defendant's mortgage; that its mortgage constituted a lien upon all of the defendant's interest in the lot, and that when plaintiff under the agreement with defendants had the lot scheduled to him, and obtained a patent therefor, the naked legal title became vested in plaintiff as trustee for defendants, subject to the liens of the Bruner mortgage and to intervener's mortgage; and that intervener's mortgage was a superior lien for the reason that the Bruner mortgage had not been properly recorded, and that it had no actual notice thereof at the time of taking its mortgage. By its prayer in its plea of intervention, which was treated by the court as intervener's answer and cross-petition, intervener prays the court to adjudge defendants the owners of the property in controversy, subject to the lien of its mortgage and of the Bruner mortgage, and that the court decree the title in the defendants, and award it judgment foreclosing its lien, and decree the sale of the property, and that the proceeds be applied, first, in refunding to plaintiff the money paid out by him to the government; second, to the payment of intervener's indebtedness; and, third, the remainder to plaintiff on his indebtedness secured by the Bruner mortgage, which plaintiff holds as assignee. A review of the theory upon which this case was tried in the trial court, and of what intervener sought by his prayer to have the court by its decree do, in our opinion discloses that the defendants are necessary parties to this appeal. We are asked by this appeal to reverse the judgment confirming the title in plaintiff and to decree that same belongs to defendants. The defendants are not before this court asking for any relief, and, if this were the only relief asked for by intervener, it would be a useless appeal, so far as intervener is concerned, but he further seeks to have this court, after it adjudges the title to the property in defendants, to award it a decree of foreclosure against the defendants foreclosing its lien upon the property, and, in order that the title to said property may be cleared of all incumbrances when conveyed at the foreclosure sale, that the Bruner mortgage be declared subject to intervener's mortgage, and, when the property is sold, that the proceeds remaining after the payment of the indebtedness secured by the prior lien be paid to plaintiff upon the indebtedness secured by the Bruner mortgage, thereby barring and foreclosing all the rights of plaintiff in the property by virtue of said mortgage. We are unable to see how this judgment or this relief can be granted without defendants being parties to the appeal. If it should be found that the judgment of the trial court should be reversed, and the relief intervener prays be granted to it, defendants would probably be in no better, or in no worse, condition, so far as the identical property in controversy is concerned, than they are under the present judgment, for the value of the property is insufficient to pay the indebtedness secured by both mortgages; but if, in fact, as contended by intervener, defendants are the owners of the title to this property, subject to the liens of the mortgages, this court is without power to foreclose defendants' rights therein under the mortgage without their being before this court.
At the foot of the decree of the trial court, and as a part of it is the following: "To all and every part of which decree the defendant and intervener excepted, and intervener prays...
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