First State Bank of Davidson v. Clingan

• Decision Date: 10 May 1910
• Docket Number: Case Number: 1246
• Citation: 26 Okla. 150,109 P. 69,1910 OK 132
• Parties: FIRST STATE BANK OF DAVIDSON v. CLINGAN et al.
• Court: Oklahoma Supreme Court

1910 OK 132

109 P. 69

26 Okla. 150

FIRST STATE BANK OF DAVIDSON v. CLINGAN et al.

Case Number: 1246

Supreme Court of Oklahoma

Decided: May 10, 1910

Syllabus

¶0 That part of section 5552, Comp. Laws 1909, which provides that "an action shall be deemed commenced, within the meaning of this article, as to each defendant, at the date of the summons which is served on him, or on a codefendant, who is a joint contractor, or otherwise united in interest with him," furnishes by analogy a guide to determine when a proceeding in error is deemed to be commenced; and where a proceeding in error is brought to reverse a judgment in favor of defendants in error, who are joint contractors or otherwise united in interest, and service is made upon one of such defendants in error, the action, for the purposes of limitation, is to be deemed to be commenced as to all.

Error from District Court, Tillman County; J. T. Johnson, Judge.

Action by the First State Bank of Davidson against C. J. Clingan and others. Judgment for defendants, and plaintiff brings error. Motion to dismiss overruled.

Robt. E. Weathers and P. Mounts, for plaintiff in error. W. E. Hudson and Ahern, Wilson & Roe, for defendants in error.

KANE, J.

¶1 The defendant in error J. C. Whelchel moves this court to dismiss the proceedings in error herein as to him, for the reason that he has not been served with summons therein within the time required by law, and that as to him said proceedings have not been commenced within the time required by law. The record shows the judgment appealed from was entered on the 28th day of November, 1908; that the case-made was prepared, properly served on the attorneys for all the adverse parties, settled by the trial judge, and flied in this court on the 29th day of November, 1909, the last day of the year within which the same could be filed. One of the defendants in error entered his appearance and waived issuance of summons in error as to him. On the 29th day of November, 1909, the plaintiff in error filed his praecipe for summons in error for J. C. Whelchel, and summons was thereupon issued and duly returned, showing no service. On the 4th day of February, 1910, an alias summons was issued for said Whelchel, which has not been returned. The record also discloses that the rights of said Whelchel will be affected by a reversal or modification of the judgment appealed from.

¶2 It has been many times held by this court that one whose rights may be affected by a reversal or modification of the judgment appealed from is a necessary party in the appellate court; and it has been held that, where a defendant in error who is a necessary party is not served, no judgment of reversal can be rendered against him until he has had an opportunity to be heard in the Supreme Court. Section 5552, Comp. Laws 1909, provides that: "An action shall be deemed commenced, within the meaning of this article, as to each defendant, at the date of the summons which is served on him, or on a codefendant, who is a joint contractor, or otherwise united in interest with him. Where service by publication is proper, the action shall be deemed commenced at the date of the first publication. An attempt to commence an action shall be deemed equivalent to the commencement thereof, within the meaning of this article, when the party faithfully, properly, and diligently endeavors to procure a service; but such attempt must be followed by the first publication of service of the summons within sixty days." The cause of action in this case was based upon a promissory note, signed by the defendants. Whelchel's defense was that the alleged promissory note set forth in plaintiff's petition was obtained from him by plaintiff by fraud, circumvention, and misrepresentation. The other defendants set up defenses of like import, and all prevailed in the court below. Under these circumstances, it is clear they were and are united in interest, and this proceeding must be deemed to have been commenced against all the defendants within the year by the acceptance of service by one of the codefendants.

¶3 Counsel for defendant in error Whelchel, in support of their motion to dismiss, contend that, if the petition in error is filed on the last day of the year allowed, then the summons in error must be served upon all the defendants in error within 6 days after, and that the case of Wedd v. Gates, 15 Okl. 602, 82 Pac. 808, specifically so holds. We cannot agree with counsel. The case of Wedd v. Gates was an action by Gates against Wedd and other defendants, in which the plaintiff sought to recover against the other defendants upon the ground that they had driven certain cattle across the quarantine line that were infected with Texas fever, which was communicated to the cattle of the Plaintiff. It seems that the pasture belonged to Wedd, and that his codefendants and the plaintiff, Gates, kept cattle therein. Each of this class of defendants filed his answer and cross-petition, and alleged that his cattle had also got the fever of Wedd's cattle, and prayed for affirmative relief against him. Upon the trial Gates, Adams, Sousley, and Eagleton each recovered judgment against Wedd, from which Wedd appealed. The case-made was prepared, properly served on the attorneys for all of the other parties, settled by the trial judge, and filed in the Supreme Court just one year after the rendition of the judgment. Summons in error was issued and service had as to all of the adverse parties except Adams, and the return of the officer showed that he could not be found in the county. Adams moved to dismiss the appeal, because it had not been taken, as to him, within one year. The other defendants in error moved to dismiss the...