Knox v. Cruel
| Decision Date | 13 January 1919 |
| Docket Number | 5398. |
| Citation | 178 P. 91,72 Okla. 21,1919 OK 16 |
| Parties | KNOX et al. v. CRUEL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where a joint judgment has been rendered in the trial court against several defendants, part of whom have properly filed their appeal in this court by petition in error and a copy of the record attached thereto, and a party defendant, who has failed to take proper steps to appeal from said judgment by filing a motion for a new trial or joining with his codefendants in their motion for a new trial and preparing and serving a case-made, joins with his codefendants in the petition in error, with the record attached thereto, this court has jurisdiction to review such judgment on the record as presented, and render such judgment as the record justifies, and the defendant, who thus joins in a petition in error, will be deemed to have waived the services of a case-made upon him or the issuance and service of summons in error, and submitted himself to the jurisdiction of this court for the purpose of the determination of the cause on the record as presented.
Additional Syllabus by Editorial Staff.
A party defendant, suffering a joint judgment, who files no motion for new trial, acquiesces in judgment against him, and cannot urge any alleged trial errors.
Commissioners' Opinion, Division No. 3.
Error from District Court, Wagoner County; R. C. Allen, Judge.
Action by Ed Cruel, a minor, by A. J. Mason, his guardian, against Ed Knox and others. Judgment for plaintiff, and defendants bring error. Motion to dismiss appeal denied.
Jesse W. Watts, of Wagoner, for plaintiff in error Southwestern Surety Ins. Co.
Rittenhouse & Brown, of Wagoner, for defendant in error.
On the 29th day of July, 1913, the plaintiffs in error filed in this cause their petition in error with case-made attached thereto. On the 6th day of April, 1917, the defendant in error filed a motion to dismiss the appeal in said cause for the reasons: First, that the plaintiffs in error had failed to serve and file briefs within the time prescribed by the rules of this court and within the time given by this court by orders extending the time within which the plaintiffs in error should file briefs; second, that all the parties necessary for review and final decision in this court are not properly brought into this court.
As to the first ground, it is sufficient to say that on the 9th day of October, 1916, the plaintiff in error, the Southwestern Surety Insurance Company, filed its brief, which was in time. The motion must be denied in this ground.
As to the second ground, the record in this case presents the same questions that were presented in the case of Bowles v Cooney, 45 Okl. 517, 146 P. 221. This court held in that case that the cause should be dismissed because all of the necessary parties were not properly made parties to the appeal. That case was followed in the case of Wilson et al. v. Jones, 154 P. 663, but later, on rehearing of the same case, 168 P. 194, the court receded from its former opinion in said case, however, basing its opinion in the latter case upon a different question than the one presented in the case of Bowles v. Cooney.
In this cause there was a joint judgment rendered against Ed Knox, as principal, S. B. Dawes, J. V. Thackaberry, and the Southwestern Surety Insurance Company, as sureties, on Ed Knox's bond, as guardian of Ed Cruel, a minor. The sureties filed a motion for a new trial, which was overruled by the court and exceptions taken, and they have properly completed their record and filed the same in this court.
Defendant Knox did not join in the motion for a new trial or file a separate motion for a new trial; neither did his codefendants serve the case-made upon him. However, Ed Knox joined his codefendants in the petition in error in this case.
The question presented here for determination is whether or not Knox is properly made a party to the appeal. The law is well settled by a long line of decisions of this court that all persons who were parties to the cause in the trial court and whose rights might be affected by the decision of this court must be made parties on appeal either plaintiffs in error or defendants in error; and, if all necessary parties are not made parties to the appeal this court has no jurisdiction to reverse, vacate, or modify the judgment appealed from. The question then is, Has this court, in the condition of the record, jurisdiction of Ed Knox? If it has, then there is no doubt but that the court has jurisdiction of all the other parties and jurisdiction to review the judgment of the lower court. If the codefendants had served the case-made upon Knox and procured service of summons in error upon him or waiver of the same, then it would be...
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