Jones v. Balsley & Rogers

• Decision Date: 14 December 1909
• Citation: 106 P. 830,25 Okla. 344,1909 OK 319
• Parties: JONES v. BALSLEY & ROGERS et al.
• Court: Oklahoma Supreme Court

106 P. 830

25 Okla. 344, 1909 OK 319

JONES v. BALSLEY & ROGERS et al.

Supreme Court of Oklahoma

December 14, 1909

Syllabus by the Court.

An action brought by J. against B. & R., contractors, for material furnished in the construction of buildings on lots of B., C. & M. for judgment in a certain sum, and also to enforce a mechanic's lien for that amount upon said buildings and lots, B. & R. having defaulted after service and judgment being rendered against them for the amount sued for, and in favor of B., C. & M. as to the lien, on appeal to this court by J. without making B. & R. parties thereto held, that B. & R. could not be affected or their rights prejudiced thereby, and that they were unnecessary parties.

(a) It being unnecessary to join certain parties in a proceeding in error to this court, it is not essential that the case-made be served upon them.

Where it is unnecessary to join certain parties on appeal in a proceeding in error to the Supreme Court, it is not essential that they have notice of the time and place of the presentation of the case-made for settlement.

There being no mode of service of the case-made prescribed by statute, if the opposite party or his attorney of record actually receives such case-made within the given time, it is immaterial whether it be by mail, express, or otherwise, it being admitted that he actually received the same within such time.

The law requiring a written notice to be given to the opposite party or his attorney of record of the time and place of the presentation of a case-made for settlement, and a message containing a proper notice and signed by the party, or another as his attorney, seeking to have the case-made settled, sent by telegraph and properly delivered in writing is a sufficient notice.

Error from District Court, Johnston County; A. T. West, Judge.

Action by James E. Jones against Balsley & Rogers and others. Judgment for defendants. Plaintiff brings error. Dismissed.

J. S Arnote, for plaintiff in error.

Cottingham & Bledsoe, for defendants in error.

WILLIAMS J. (after stating the facts as above).

The defendants in error, Muldrow, Bledsoe & Colbert, moved to dismiss this appeal on the following grounds: (1) The case-made was never served upon Balsley & Rogers; (2) the said Balsley & Rogers are necessary parties to the proceeding in error; (3) same was never legally served upon the defendants in error, Muldrow, Bledsoe & Colbert; (4) no proper notice of the time and place of the settlement of the case-made was served.

(1) If Balsley & Rogers were not necessary parties to the proceeding in error, it was not essential that the case-made be served upon them or that they have notice of the time and place of the presentation of the settlement of the same. In the case of Atlantic Trust Co. et al. v. Prescott et al., 5 Kan. App. 172, 48 P. 926, the court said: "On June 24, 1892, C.J. Prescott and Arthur Allen, partners as Prescott & Allen, filed their petition in the circuit court of Shawnee county against Hattie I. Dennis, J. H. Dennis, the Atlantic Trust Company, W. E. Swentzel, B. L. Vineyard, and C. T. Harvin to foreclose a mechanic's lien on property (described) in the city of Topeka, and to correct the statement filed for said lien on said property. To this petition the Atlantic Trust Company filed its answer, denying the validity of plaintiffs' lien, and setting up a mortgage in its favor on said property given by the Dennises, defendants, April 6, 1889, for $27,000, and asking that it be declared paramount and superior to plaintiffs' claim. To this answer the plaintiffs filed a general denial. The defendant W. E. Swentzel filed his answer to plaintiffs' petition, denying the validity of plaintiffs' lien, and setting up a first lien in his favor on said property for $7,699.73 by virtue of a judgment of the circuit court of the United States for the district of Kansas. To which plaintiffs filed a general denial. The cause came on for hearing February 1, 1893, the plaintiffs and the defendants, W. E. Swentzel and the Atlantic Trust Company appearing. The defendants Hattie I. Dennis, J. H. Dennis, B. L. Vineyard, and C. T. Harvin made default, although all were personally served. A jury was waived, and the cause tried by the court, the issues found for the plaintiffs, and the judgment rendered for said plaintiffs and against said Dennises, defendants, for $141.50, and interest at 6 per cent. from date, and costs. The property was ordered sold, if judgment be not paid within 30 days, and proceeds applied--first, to the payment of the costs; second, to the payment of plaintiffs' judgment and interest, and to the defendant W. E. Swentzel $7,699.73 and interest, with equal priorities; third, to the defendant the Atlantic Trust Company, $27,000, with interest; fourth, that the balance be brought into court to abide its further order. To the rendition of which judgment and decree in favor of said plaintiffs, defendants Swentzel and the Atlantic Trust Company excepted. Motion for a new trial was duly made and overruled, and the case brought here, on a petition in error attached to a case-made, for review. The first question for our decision is the motion of the defendants in error to dismiss the petition in error for the reason that the defendants in the court below, Hattie I. Dennis, James H. Dennis, B. L. Vineyard, and C. T. Harvin, have not been brought into this court. This is not merely a question of the marshaling of liens. The issue raised is, have the defendants in error any lien upon the property in question? If they have a lien for the amount claimed, it is undoubtedly superior to the lien of the plaintiffs in error. In Paper Co. v. Hentig, 31 Kan. 322, 1 P. 533, the court says: 'In no case should a judgment be interfered with by the Supreme Court where one of the parties to the judgment is not a party in the Supreme Court.' In Central Kansas Loan & Inv. Co. v. Chicago Lumber Co., 53 Kan. 677, 37 P. 132, it was held that, where 'it appears that a modification or reversal will affect a defendant who has not been made a party, the proceedings in error will be dismissed.' In that case the plaintiff in error claimed that not only was its lien prior to the lien of the defendant in error, but that the amount allowed the defendant in error against the owner of the land, who was not brought into the reviewing court, was too large, and the case was dismissed for defect of parties. That case is very much like the case at bar, the main difference being that in that case the omitted defendant contested in the court below, which was not done by the Dennises. But we do not think this is material. The motion to dismiss the petition in error for defect of parties is sustained."

In the case of Hallwood Cash Register Co. v. Dailey, 70 Kan. 620, 79 P. 158, the court said: "Counsel for defendant in error ask for a dismissal of the petition in error because Schroeder was not made a party nor was the case-made served on him. He 'did not appear at the trial and take part in the proceedings,' for which reason, under section 5020, General Statutes of 1901, he was not a necessary party. Haas v. Tough, 67 Kan. 253, 255, 72 P. 856."

In the Haas Case in 67 Kan. and 72 Pac., the court likewise predicates its ruling on section 5020, Gen. St. 1901. By reference to said section (Gen. St. Kan. 1901, § 5020, p 1029), we find, that on the 22d day of March, 1901, the Legislature of that state provided: "It shall not be necessary for the party desiring to have any judgment or order of the district court, or other court of record, other than the probate court, to serve the case-made for such court, on any party to the action who did not appear at the trial and take part in the proceedings from which the appeal is taken, or who shall have filed a disclaimer in the district court, nor shall it be necessary to make any such person a party to the petition in error: Provided, that any person so omitted from the proceedings in error, who was a party to the action in the district court, may be made a party plaintiff or defendant in the action in the Supreme Court upon such terms as the court may direct, upon its appearing that he might be affected by the reversal of the judgment or order from which the appeal was taken,...