Nat'l Sur. Co. v. Okla. Presbyterian Coll. for Girls

• Decision Date: 06 May 1913
• Docket Number: Case Number: 4387
• Citation: 132 P. 652,38 Okla. 429,1913 OK 292
• Parties: NATIONAL SURETY CO. v. OKLAHOMA PRESBYTERIAN COLLEGE FOR GIRLS et al.
• Court: Oklahoma Supreme Court

1913 OK 292

132 P. 652

38 Okla. 429

NATIONAL SURETY CO. v. OKLAHOMA PRESBYTERIAN COLLEGE FOR GIRLS et al.

Case Number: 4387

Supreme Court of Oklahoma

Decided: May 6, 1913

Syllabus

¶0 1. APPEAL AND ERROR--Parties--Service of Case-Made. All parties to a joint judgment must be joined in a proceeding in error in this court, either as plaintiffs in error or as defendants in error, before such judgment can be reviewed; and where a review of the judgment is sought by means of a petition in error and case-made, service of the case-made within the time prescribed by the statute must be had against all parties who do not Join in the appeal as plaintiffs in error, but who are made parties thereto as defendants in error.

2. SAME--Service of Case-Made--Parties. Where the trial court does not acquire jurisdiction of a party by service of process or by his appearance, a judgment rendered against him is void; and service of case-made upon him is not required.

3. NAMES--Assumed Name--Action. Where a person engages in business under a firm name and assumes such name for the purpose of transacting his business and executes contracts under such name, he may be sued under such name.

4. APPEARANCE--What Constitutes--Effect. Where an action was brought against a person under the firm name under which such person did business, and such defendant filed a demurrer to the petition under the firm name, the filing of such demurrer constituted a personal appearance of defendant; and upon the demurrer's being sustained by the court upon the ground of misjoinder of causes of action, an order was made permitting plaintiffs to file separate actions, one of which was directed to be filed against said defendant in his real name, rather than in his assumed name, which was thereafter so filed. Held, that by reason of section 5632, Comp. Laws 1909 (Rev. Laws 1910, sec. 4743), no issuance of summons and service thereof was necessary to obtain Jurisdiction of the person of such defendant, but that such separate action might be prosecuted against him without further service.

5. PLEADING--Amendment--Service on Defendant. Where the action was brought by two persons as coplaintiffs, and the order of the court upon the demurrer was that separate actions upon the plaintiffs' cause of action be filed in the names of said two plaintiffs, and in filing the separate action one of the names of said plaintiffs was omitted, an amendment thereafter made by the court, so amending the petition as to supply the name of the omitted plaintiff, effects only a full compliance with the order of the court directing that separate actions be filed in the name of both plaintiffs; and service of such an amendment upon a defendant is unnecessary before judgment upon default may be rendered against him.

William F. Robertson and Kyle & Newman, for plaintiff in error.

C. C. Hatchett, for defendants in error.

HAYES, C. J.

¶1 This appeal is prosecuted from a judgment rendered in the district court of Bryan county in favor of defendants in error, Oklahoma Presbyterian College for Girls and the Executive Committee of the Home Missions of the Presbyterian Church of the United States, against M. J. Gill and plaintiff in error, the National Surety Company, for the sum of $ 14,221.42. A motion has been filed in this court by the College and the Executive Committee to dismiss the appeal, upon the ground that the case-made attached to the petition in error is void, because not served upon their codefendant in error, M. J. Gill, within the time provided by law. The judgment against plaintiff in error and Gill is a joint judgment. The Surety Company contends, in opposition to the motion to dismiss, that the judgment against Gill is void, because the trial court failed to obtain jurisdiction of his person. Some of the propositions presented by this motion to dismiss have been settled by former adjudications of this court. We shall state those propositions first. All parties to a joint judgment must be joined in a proceeding in error in this court, either as plaintiffs or as defendants in error before such judgment can be reviewed; and, where the review is sought by means of petition in error and case-made, service of the case-made within the time prescribed by the statute must be had upon all parties against whom the joint judgment is rendered who do not join in the appeal as plaintiffs in error, and who are made parties thereto as defendants in error; and failure to serve the case-made upon such parties will operate to prevent the same from being considered in this court. May et al. v. Fitzpatrick et al., 35 Okla. 45, 127 P. 702; American Nat. Bank of McAlester et al. v. Mergenthaler Linotype Co., 31 Okla. 533, 122 P. 507; Thompson et al. v. Fulton, 29 Okla. 700, 119 P. 244; Price et al. v. Covington, 29 Okla. 854, 119 P. 626. But where the trial court does not acquire jurisdiction of a party by service of process or by his appearance, a judgment rendered against him is void, and service of the case-made upon him is not required. State ex rel. Hankins, Co. Atty., v. Holt et al., 34 Okla. 314, 125 P. 460. In their original petition filed in the court below, the College and the Executive Committee allege that defendant M. J. Gill Construction Company is the firm name under which M. J. Gill does business; and that defendant National Surety Company is a corporation. They allege that, some time prior to the institution of the action, the College entered into a contract with M. J. Gill Construction Company, whereby it agreed to construct and complete a certain brick building for the sum of $ 57,000; that, under the terms of the contract, the building was to be completed on or before a specified date; and that, upon failure so to complete the building, the Construction Company would be liable for liquidated damages in the sum of $ 20 per day. They allege at the time of making the contract, as a part and parcel thereof, M. J. Gill Construction Company, as principal, and the National Surety Company as surety, executed and delivered to the College their obligation, whereby they obligated themselves that the building would be completed in accordance with the terms of the contract, and would be turned over and delivered on or before the date specified therein, free, clear, and discharged of and from all laborers', mechanics', and materialmen's liens. They allege that the building was not completed within the time specified in the contract. In the same petition they also make party defendants a large number of other persons and corporations, who they...