McDonald v. Harrod

• Decision Date: 29 April 1941
• Docket Number: 29755.
• Parties: McDONALD et al. v. HARROD et al.
• Court: Oklahoma Supreme Court

113 P.2d 385

189 Okla. 47, 1941 OK 145

McDONALD et al. v. HARROD et al.

No. 29755.

Supreme Court of Oklahoma

April 29, 1941

Rehearing Denied May 29, 1941.

Syllabus by the Court.

All parties to an action whose interests will be affected by a reversal of the judgment appealed from must be made parties to the appellate proceeding.

Appeal from District Court, Oklahoma County; Frank Douglass, Judge.

Action to foreclose a mortgage by J. Q. A. Harrod and Grace LaMar against A. B. McDonald and Jennie Lou McDonald, wherein one Renz intervened. From a judgment in favor of the plaintiffs the defendants appeal, and the plaintiffs move to dismiss the appeal.

Appeal dismissed.

Fred L Hoyt, Frederick J. Hoyt, and Robert Burns, all of Oklahoma City, for plaintiffs in error.

Chas D. Scales, of Oklahoma City, for defendants in error.

BAYLESS Justice.

This is an appeal from the District Court of Oklahoma County. Harrod et al. filed an action against A. B. McDonald et al. to foreclose a mortgage on real estate. Issues were joined respecting the amount of mortgage indebtedness and whether there was a default. Judgment was rendered in favor of mortgage holders, according to their theory of applying payments on the mortgage debt, and their mortgage was declared a first lien, superior to a judgment lien claimed by Renz, an intervenor.

Plaintiffs preface their brief with a motion to dismiss for defect of a necessary party. The intervenor was not served with a copy of the case made, and is not regarded by plaintiffs in error as an opposite party affecting this appeal. The absence of the alleged necessary party is urged as a jurisdictional matter.

The basis for the motion to dismiss is the requirement of our statutes, 12 Okl.St.Ann. §§ 954 and 958, relating to notice of appeal; parties on appeal, and service of case made, and our decisions construing and applying those sections including George v. Robinson, 47 Okl. 623, 149 P. 1087; John v. Paullin, 24 Okl. 636, 104 P. 365, and others.

It is urged that there was an issue between plaintiffs and intervenor as to the priority of their respective liens, and that although this was settled in favor of plaintiffs, the movants here, a marshalling of assets was ordered in favor of intervenor, and a reversal of plaintiffs' judgment would necessarily affect the rights of intervenor under her judgment. The judgment debtors, plaintiffs in error, have not answered the motion to dismiss by a response nor by a reply to the answer brief.

The defendants contended below and contend in their brief here that the ...